The Issue Whether Respondent, William T. Cooper, pled guilty to acts which directly relate to the practice of engineering or the ability to practice engineering within the meaning of Subsection 471.033(1)(d), Florida Statutes, and, if so, what penalty should be imposed on his license to practice engineering.
Findings Of Fact Respondent, William T. Cooper (Respondent), is and has been at all times material to this matter, a licensed professional engineer in the State of Florida having been issued License No. PE 20462. On March 22, 2000, Respondent was charged by criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. That indictment contained twelve separate counts. On August 29, 2000, Respondent entered a Plea Agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Respondent entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida. The amount of restitution is equivalent to the amount of the fees that Respondent was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One though Six and Counts Nine through Twelve against Respondent, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Respondent "admits the facts of the charge." Counts Seven and Eight of the indictment charged Respondent with two counts of Grand Theft, in the first degree, and both counts provide in relevant part the following: WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use or endeavor to obtain or use U.S. Currency or other property with an equivalent value to-wit "delinquency days" with a value of $100,000 or more, the property of another to-wit Florida Department of Transportation, hereinafter FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false and fraudulent charges or claims or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. Count Seven relates to Project Number 36210-3439 on Interstate 75 (I-75) in Marion County, Florida, and to activities which allegedly occurred between January 30, 1996, and January 30, 1998. Count Eight relates to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 (I-75) in Marion County, Florida, and relates to activities which allegedly occurred between July 16, 1997, and March 17, 2000. The indictment arose out of certain work performed by Respondent after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages, and to testify regarding those matters in depositions and, if necessary, at trial. Respondent was not retained by the law firm to work as an engineer. Prior to retaining Respondent, the attorneys who represented White Construction Company had retained several engineering firms to identify and analyze all the engineering issues. The attorneys who retained Respondent spent an amount in excess of $120,000.00 for those services performed by those engineering firms. Moreover, as a result of the engagement of those engineering firms and the work they performed, the engineering issues had already been identified before the Respondent was retained. During the time he was retained by the law firm that was representing White Construction Company, Respondent went to the job sites, the I-75 road improvements in North Central Florida, a total of three times. The largest continuous time the Respondent was on the construction site was four hours. In order to do the work that the law firm had retained him to do, prepare cost evaluations and calculate cost damages, Respondent received and relied on the information provided by the engineers, as well as information provided by White Construction Company and the Florida Department of Transportation. Respondent did not identify or analyze engineering issues. Rather, his responsibility was to take the analysis of various engineering issues that had been done by the engineering firms and to calculate the claim cost. In carrying out this responsibility, Respondent was not allowed to question the calculations performed by the engineers. Respondent had no knowledge that the information provided to him was in any way a misrepresentation of the truth. Since the time Respondent calculated those claims, he learned that there had been false representations made by White Construction Company. For example, Respondent later learned that statements made to him regarding equipment and labor that were on the jobs for which he prepared claims were not on the subject jobs. The attorneys that retained Respondent requested that he prepare the claims both with concurrences and without concurrences. Respondent complied with this request and sent the claims to the law firm. A "concurrency" refers to an instance where the same labor and equipment used for one or more projects are reported on two or more claims with overlapping periods of time. For example, a contractor may submit a claim for June through August, after which he submits another claim for August though December, and, finally, he submits a claim that covers the middle of December to January. The concurrency occurs if the same labor and equipment costs included in the first claim are also included in an overlapping time period in the second claim. If the labor and equipment costs in the second period are also included in an overlapping time period in the third claim, there is concurrency with respect to the labor and equipment costs that have been included on both claims for the same time period. It is a customary practice in claims preparation for contractors to ask a claims preparer to prepare separate claims that include the concurrencies as well as to prepare claims with the concurrences taken out. When the claims include concurrencies, someone must go back and take the concurrencies out. The owner or contractor decides who will be responsible for doing this. In this case, the law firm that retained Respondent requested only that he prepare the claims with concurrencies and those without concurrencies. The claims preparer does not submit the claims and has no control over which claims the contractor presents for payment. The claims which were at issue in the underlying legal proceeding were not submitted by Respondent. The claims prepared by the Respondent and certified and presented to the Florida Department of Transportation by White Construction Company totaled $30 million. However, the claims prepared by Respondent could only have totaled $30 million if all the concurrencies remained in all the claims. Respondent never submitted claims to the Florida Department of Transportation or otherwise indicated to the Department that White Construction Company was entitled to the total amount of the claims including the concurrencies. James D. Eckert, Esquire, was qualified and accepted as an attorney who is an expert in the field of criminal law and criminal defense. Mr. Eckert represented Respondent in matters related to the criminal indictment referenced in paragraph 2. He took discovery with regard to Counts Seven and Eight but never found any evidence that incriminated Respondent. The reason Respondent entered a plea of guilty to Counts Seven and Eight of the criminal indictment was for reasons other than he was guilty. Mr. Eckert recommended that Respondent enter a plea because of several compelling factors. These factors included the following: the Statewide Prosecutor was offering to withhold adjudication; the trial would have lasted at least six weeks and cost Respondent more than $150,000.00; all witnesses who could corroborate Respondent's innocence had announced that they were invoking the Fifth Amendment and would not testify; and the Plea Agreement was intended to be a total settlement of the entire situation. Both the Florida Department of Transportation and the Florida Department of Law Enforcement agreed to the terms of the plea agreement. As support for its position in this case, Petitioner relies on a few excerpts from the more than 700-page deposition transcript of Respondent taken in 1998, and its witnesses interpretation of that deposition. According to testimony presented by Petitioner, one basis of the charge against Respondent was that, at the deposition in the underlying civil action between White Construction Company and the Florida Department of Transportation, Respondent was "introduced as the engineer for White Construction Company that was most knowledgeable about claim issues that were submitted to the Department in the damage lawsuits in addition to his representations in depositions." A review of the deposition transcript, however, reveals that Respondent was not introduced as an engineer, but was represented as the person most knowledgeable about the claim damages. Petitioner also presented testimony that, with regard to claims preparation, Respondent was acting as an engineer to the extent that he was involved in "technical issue identification and development." No specific facts were given to support this general statement or the allegations in the Amended Complaint. The evidence presented by Petitioner did not establish that the conduct described in paragraphs 25 and 27, even if true, was the same conduct that was the basis of Counts Seven and Eight of the indictment. Moreover, Petitioner failed to show that, in either case, Respondent was acting as an engineer or that the conduct was directly related to the practice of engineering or the ability to practice engineering. Engineering education, training, and experience are not necessary or required to prepare claims and cost damages. This is evidenced by the fact that there are many people who prepare claims such as the ones prepared by Respondent and who use the same methodologies that were used by Respondent but who are not engineers. There was no evidence presented to support the allegation in the Amended Administrative Complaint that the acts to which Respondent pled guilty directly relate to the practice of engineering or the ability to practice engineering. Respondent has been licensed as a professional engineer since 1974. Except for the complaint that is the subject of this proceeding, Respondent has never had a complaint filed against his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order dismissing the charges in the Amended Administrative Complaint against, Respondent, William T. Cooper. DONE AND ENTERED this 6th day of January, 2003, 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 6th day of January, 2003. COPIES FURNISHED: David P. Rankin, Esquire Law Offices of David P. Rankin, P.A. 3837 Northdale Boulevard, Suite 332 Tampa, Florida 33624 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Natalie A. Lowe, Executive Director Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Petitioner is entitled to credit for her answers to questions 55 p.m. and 56 p.m. on the Fundamentals of Engineering portion of the engineering licensure examination given on April 15, 2000.
Findings Of Fact Upon consideration of the oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of an engineer in the State of Florida is administered by the Florida Engineers Management Corporation, a not-for-profit corporation, created under Section 471.038, Florida Statutes. A written examination is authorized by Rule 61G15-21.001, Florida Administrative Code. Respondent contracts with the National Council of Examiners for Engineering and Surveying to provide engineering licensure examinations. This practice is approved by Section 455.217, Florida Statutes, and Rule 61G1 5-21.005, Florida Administrative Code. The National Council of Examiners for Engineering and Surveying develops standardized tests given for licensure throughout the United States and ensures that the questions are not ambiguous through a number of methodologies. A candidate for licensure as an engineer intern must attain a "scaled" score of 70 to pass the examination. On the examination taken by Petitioner, the minimum "raw" score required to attain a "scaled" score of 70 was 107; Petitioner's "raw" score was 105. Petitioner had initially challenged five questions; at the hearing, Petitioner withdrew her challenge to three questions; the two remaining challenged questions (55 p.m. and 56 p.m.) were "ethical" questions, i.e., they dealt with questions of engineering ethics. The challenged questions were multiple-choice questions. The test gives the following directions: "Each of the questions or incomplete sentences below is followed by four suggested answers or completions. Select the one that is the best in each case and then fill in the corresponding space on the answer sheet." (Emphasis added.) The challenged question 55 p.m. deals with an engineer hired to prepare a report on the design, manufacture, and assembly of a structure. The report contains references to "shoddy workmanship." Petitioner states that while she agreed that answer A [the graded "correct" answer] is correct, she believed that the inclusion of the word "also" in answer B included answer A in answer B by reference and therefore she chose B as her answer. Petitioner acknowledges that the word "also" in answer B could be referring to language in the question rather than in answer A. Answer A specifically refers to "engineering issues" which the engineer is "qualified to assess"; answer B indicates that the references to "shoddy workmanship" are "personal opinions" and "not professional opinions". An engineer is obligated by his license not to give an opinion for which he does not have expertise. An engineer should not render a personal opinion in a report in which the engineer gives a professional opinion. The challenged question 56 p.m. deals with an engineer who lacks expertise dealing with space frames but designed structures which included same. Regarding challenged question 56 p.m., the Petitioner acknowledged that answer A (the graded "correct" answer) could have been the correct answer as well as the answer she chose, answer D. Answer D indicates that the engineer was unethical because he did not refer that matter to the Registration Board. An engineer should not contact the Registration Board and report to the Board that someone has asked him to do something unethical; it is incumbent upon an engineer to practice engineering ethically without the input of the Board. In both instances in answering the challenged questions the Petitioner failed to provide the "best" answer and at hearing acknowledged that the graded "correct" answer by the National Council of Examiners for Engineering and Surveyors was a "correct" answer even though she chose a different answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Engineers Management Corporation enter a final order denying Petitioner's challenge to questions 55 p.m. and 56 p.m. DONE AND ENTERED this 27th day of December, 2000, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 27th day of December, 2000. COPIES FURNISHED: Yvette Bowman 3401 North Lakeview Drive Apartment 216 Tampa, Florida 33618 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Barton, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301
The Issue Whether the Respondent, Emilio R. Pinero, P.E., committed the offenses alleged in an Administrative Complaint issued March 26, 2001.
Findings Of Fact At all times material to the allegations of this case, the Respondent, Emilio R. Pinero, P.E., has been registered as a licensed engineer in the State of Florida, license number PE 48352. The Petitioner is the entity charged by the State of Florida to regulate the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. Prior to July 3, 2000, organizers for a festival sought a building permit to erect a stage, ramp, and grandstand to be constructed from wood. The permit request was made to the Miami-Dade County Building and Zoning Department and was rejected, as it was neither signed nor sealed by a qualified person. When later contacted by the festival organizers, the Respondent agreed to prepare the necessary documents in order for them to obtain the building permit. At the Respondent's direction, Mr. Rodriguez prepared drawings and calculations for the festival organizers. Mr. Rodriguez is not licensed or registered to perform engineering in the State of Florida. Although he was trained in Cuba and Germany, Mr. Rodriguez utilized improper engineering criteria to calculate the information needed for the subject permit. In fact, the formulas, drawings, and structures described in the permit documents were "meaningless." For reasons not fully explained in this record, the Respondent signed and sealed the permit documents. The festival organizers then submitted the erroneous documents to the Building and Zoning Department so that the permit might be issued. It was not. Instead, the building official rejected the plans and refused to issue the permit. Although the original documents no longer exist, Mr. Valdes was certain that the papers he reviewed were signed and sealed by the Respondent. It is undisputed that the Respondent signed the papers submitted for the permit. Copies in existence do not reproduce the raised portion of the seal. The Respondent does not recall placing his seal on the documents. Mr. Rodriguez did not believe the documents were placed under seal. Nevertheless, the Respondent maintains that the drawings were only preliminary and would have been corrected had the Building and Zoning Department returned them. To the contrary, it is determined that the Building and Zoning Department, as a matter of policy and practice, does not correct plans and calculations under the circumstances described in this case. The calculations and drawings were rejected and a permit was not issued. No public harm resulted from the use of the calculations and drawings as they were not utilized by the festival organizers. The Respondent admitted that the wrong engineering criteria were applied in the preparation of the calculations and drawings. The Respondent is currently 78 years of age. He no longer engages in the field of structural engineering, and he rarely prepares calculations and drawings for the purpose of issuance of building permits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order reprimanding the Respondent for negligence in the performance of his duties, imposing an administrative fine in the amount of $1,000.00, and placing him on probation for a period of two years. DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2002. COPIES FURNISHED: Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts,III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Arnaldo Velez, Esquire Arnold Velez, P.A. 35 Almeria Avenue Coral Gables, Florida 33134 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
The Issue Whether Petitioners' claim for monies from the Florida Homeowners' Construction Recovery Fund is subject to adjudication pursuant to Section 120.57(1), Florida Statutes, and, if so, how much should Petitioners be awarded.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On or about October 1, 1997, Petitioners entered into a contract in which they agreed to pay Respondent Norman Levinsky's company, Broward Roofing, Inc., $3,700.00 to place a "new shingle roof" on Petitioners' residence and perform other related roofing work. The contract provided Petitioners with a ten-year "labor warranty" and a 30-year shingle warranty. After the contracted work was completed and Petitioners paid Broward Roofing, Inc., the $3,700.00 called for by the contract, the newly-installed roof started leaking. Broward Roofing, Inc., refused to make the necessary repairs. Petitioners paid other contractors to perform the repair work. On November 17, 1998, Petitioner filed an application seeking to recover from the Florida Construction Industries Recovery Fund (which has since been renamed the Florida Homeowners' Construction Recovery Fund) $1,025.00 that they had paid for repairs to the "new shingle roof" Broward Roofing, Inc., had recently installed, contending that they were deserving of such an award inasmuch as "[t]he roofer [Broward Roofing, Inc.] [had] refused to fix [their] new roof that was leaking and [had] totally ignored [their] 10 year warranty." Their application was filed on a Board-produced Construction Industries Recovery Fund Claim Form (Form), at the end of which was printed the following: In addition to your complete written statement, we are requesting documentation of your contractual relationship with the contractor and evidence supporting your claim. Certified copies of the following list of documents are required to assist us in determining your eligibility for recovery. I have attached the following: (these documents are required for proper processing of your claim. Failure to provide required documentation will delay processing and could result in your claim being denied due to incompleteness.) Court certified copy of the Civil Judgment, and/or Final Order of the Construction Industry Licensing Board directing restitution be paid. Copy of contract between you and the contractor. Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance. Court certified copies of levy and execution documents. Proof of all efforts/inability to collect restitution judgment. No claims will be processed until 45 days after the date of entry of the Civil Judgment and/or Final Restitution Order. On the completed Form that Petitioners filed, only the spaces next to "Copy of contract between you and the contractor" and "Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance" were checked. On May 4, 1999, the Broward County Central Examining Board of Construction Trades filed an Administrative Complaint against "Norman Levinsky d/b/a Broward Roofing, Inc.," which read as follows: Count I At all times material hereto RESPONDENT was a roofing contractor holding Broward County Certificate of Competency #95-7726-R- R. On or about September 16, 1997, RESPONDENT entered into a contract to re- roof Complainant's home located at 10551 N.W. 21st Court, Sunrise, Florida. RESPONDENT obtained a building permit. The work was completed on March 10, 1998 and the roof began to leak on June 1, 1998. RESPONDENT failed to properly supervise to ensure that the tie in with flat roof was properly completed. His failure to ensure such a proper tie in resulted in leaks. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(11) of the Broward County Code of Ordinances by failing to properly supervise a project commenced pursuant to a building permit. Count II Paragraphs 1 and 2 are included as if restated herein. Complainant paid RESPONDENT the total contract price of $3,700.00. RESPONDENT completed the work. RESPONDENT gave Complainant a 10 year labor warranty. RESPONDENT failed and refused to honor his warranty. Complainant had to pay additional amount of $1,025.00 for a new contractor to repair the work of RESPONDENT. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(5)c of the Broward County Code of Ordinances by committing mismanagement which causes financial harm to a customer because the customer had to pay more for the contracted job than the original contract price. Count III Above paragraphs are included as if restated herein. RESPONDENT failed to honor the warranty and complete the project in a workmanlike manner for a period in excess of 90 consecutive days. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(8) of the Broward County Code of Ordinances by abandoning a construction project in which RESPONDENT was under contract as a contractor. It is determined that the above stated charges are grounds for disciplinary action pursuant to Chapter 9, Sections 9-14, 9-28 and 9-46, Broward County Code of Ordinances and Section 6.11, Broward County Charter. Broward County has the authority to certify and discipline local contractors pursuant to Section 489.131, Florida Statutes. Following a hearing on the Administrative Complaint held May 25, 1999, the Broward County Central Examining Board of Building Construction Trades, on June 16, 1999, issued an Order, which read as follows: A Disciplinary Proceeding was held on May 25, 1999, before the Broward County Central Examining Board of Building Construction Trades (the "Board"), in accordance with Section 9-14, Broward County Code of Ordinances (the "Code"). Service of the Administrative Complaint filed against the Respondent was made by certified mail. The Respondent being duly advised was not present at the hearing. The Board heard the sworn testimony of William Grubb and Marlene Grubb. Upon consideration, it is ORDERED: The allegations of fact as set forth in the Administrative Complaint are found to be true and adopted and incorporated herein by reference as findings of fact. The conclusions of law alleged and set forth in the Administrative Complaint are approved and adopted and incorporated herein. Upon these findings, it is therefore ORDERED: That Respondent's Certificate of Competency is hereby revoked. That the Respondent make restitution to the Complainants in the amount of $3,700.00. Prior to the RESPONDENT being allowed to reinstate his certificate of competency or being allowed to sit for any exam administered by a Broward County Central Examining Board, or receiving any license from a Broward County Central Examining Board, RESPONDENT must appear before the Board and prove that the restitution amount has been paid in full. The board's order may be appealed by Petition for Writ of Certiorari to the Seventeenth Judicial Circuit within thirty (30) days of the date of rendition of the order of the board as provided by the Florida Rules of Appellate Procedure. FURTHER, the Broward County Central Examining Board of Construction Trades makes RECOMMENDATION to the Florida Construction Industry Licensing Board to impose on the state registration, the following penalty: 1. Revoke state registration and require the RESPONDENT to make restitution to the Complainants in the amount of $3,700.00. In accordance with Florida Statutes, Chapter 489.131(7)(c) and (d), the disciplined contractor, the complainant, or the Department of Business and Professional Regulation may challenge the local jurisdiction enforcement body's recommended penalty for Board action to the State Construction Industry Licensing Board. A challenge shall be filed within sixty (60) days of the issuance of the recommended penalty to the State Construction Industry Licensing Board in Jacksonville, Florida. If challenged, there is a presumptive finding of probable cause and the case may proceed before the State Board without the need for a probable cause hearing. Failure of the disciplined contractor, the complainant, or the Department of Business and Professional Regulation to challenge the local jurisdiction's recommended penalty within the time period set forth in this subsection shall constitute a waiver of the right to a hearing before the State Construction Industry Licensing Board. A waiver of the right to a hearing before the State Board shall be deemed an admission of the violation, and the penalty recommended shall become a final order according to procedures developed by State Board rule without further State Board action. Pursuant to Section 120.569, Florida Statutes, the Parties are hereby notified that they may appeal the Final Order of the State Board by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of said Order. On or sometime after September 1, 1999, Petitioners filed an affidavit prepared by Petitioner Marlene Grubb, which read as follows: I, Marlene A. Grubb, hereby certify that I have completed a reasonable search and inquiry in accordance with the instructions provided by the Construction Industry Licensing Board and have not found property or assets to satisfy my Board Order[1] in whole or part. Legal Names The Department of State revealed that the company Broward Roofing Inc. was administratively dissolved on 9/10/98. The C[IL]B verified the contractor[']s name and license number as: Norman Levinsky d/b/a Broward Roofing Inc. RC0047656. Real Property My search included property in the names: Norman Levinsky and Broward Roofing Inc. in Broward County, Florida. Norman Levinsky had no real property and Broward Roofing Inc. is delinquent on property taxes for over two years. Boats and Motor Vehicles There were no vehicles or boats in the motor vehicle data bank registered to Norman Levinsky or Broward Roofing Inc. Aircraft The FAA in Oklahoma City, Ms. Jeannie Vannest stated that there is no registration listed for Norman Levinsky or Broward Roofing Inc. On March 25, 2004, the Board rendered a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body, which approved the Broward County Central Examining Board of Building Construction Trades' June 16, 1999, Order and read as follows: THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board") pursuant to Section 489.131(7), Florida Statutes, for a determination of whether to accept the proposed recommended penalty by the Broward County Central Examining Board of Building Construction Trades (a copy of which is attached and incorporated herein by reference). Neither the Petitioner, the Respondent nor the Complainant filed a challenge to the local enforcement body's recommended penalty to the Board. Upon consideration of the local enforcement body's Administrative Complaint, the minutes from the meetings on January 21, 1999, and May 25, 1999, and the Final Order of Disciplinary Action and its proposed recommended penalty to the Board in this matter and being otherwise fully advised in the premises it is hereby ORDERED AND ADJUDGED: The proposed recommended penalty is hereby approved and adopted in its entirety and incorporated herein by reference. In accordance with the recommended penalty, Respondent's state registration (RC 0047656) is hereby REVOKED. Respondent shall pay restitution in the amount of $3,700 to William and Marlene Grubb. Respondent will adhere to and abide by all of the terms and conditions of the recommended penalty. Failure to abide by the terms of this Order may result in further action by the Board. This Order shall be placed in and become a part of Respondent's official records. A change in the Respondent's licensure status, including the suspension, revocation, voluntary relinquishment, or delinquency of license, does not relieve the Respondent of his obligation to pay any fines, costs, interest or restitution imposed in this and previous orders. Pursuant to Section 120.68, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order. This Order shall become effective upon filing with the Clerk of Department of Business and Professional Regulation. This was the "Final Order of the Construction Industry Licensing Board directing restitution be paid," that, according to the Form Petitioners used to submit their claim for monies from the Florida Construction Industries Recovery Fund, was "required for proper processing of [their] claim." On June 10, 2004, more than five and a half years after Petitioners had filed their claim application, the Board met to determine the merits of their claim pursuant to Section 120.57(2), Florida Statutes. Although given due notice of the Board meeting, neither Petitioners, nor Mr. Levinsky, made an appearance, either in person or through a representative, at the meeting. "[U]pon consideration of the documentation and testimony submitted," the Board determined that Petitioners' claim for $1,025.00 should be "approved." On July 29, 2004, the Board rendered (that is, filed with the agency clerk) a written order to this effect, which read as follows: THIS MATTER came before the Construction Industries Recovery Fund Committee and Construction Industry Licensing Board (the "Board") pursuant to sections 120.57(2) and 489.143, Florida Statutes (2003) as well as rule 61G4-21.004, Florida Administrative Code, on June 10, 2004, in Coral Gables, Florida, for consideration of a claim for restitution from the Construction Industries Recovery Fund (the "Recovery Fund"). William [a]nd Marlene Grubb ("Claimants") and Norman Levinsky ("Licensee") were duly notified of the proceedings. At the proceedings before the committee and the Board, Claimants were not present, and were not represented by counsel. Licensee was not present, and was not represented by counsel. Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants satisfied all requirements for payment from the Recovery Fund. The Recovery Fund Claim was filed on November 17, 1998. The application was timely filed. The contractor was paid $3,700.00. Claimants were awarded restitution from the Construction Industry Licensing Board on March 24, 2004, in the amount of $3,700.00, pursuant to a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body. The Board adopted and approved the Broward County Central Examining Board of Building Construction Trades recommendation, which found: Contractor held a current and active license at all times material to the transaction; The construction contract is dated September 18, 1997; The work was completed on March 10, 1998, and the roof began leaking June 1, 1998; Contractor failed to honor the warranty on the roof; As a result, Claimants paid an additional $1,025.00 for repair work; Contractor violated subsection 9- 14(b)(5)c of the Broward County Ordinances by committing mismanagement, which caused financial harm to a consumer because the consumer had to pay more for the contractual job than the original contract price. The contractor engaged in activity that appears [to] violate section 489.129(1)(g)2, Florida Statutes (2003). There is an asset search in the file that shows no assets are available from which claimant can satisfy the judgment. Pursuant to section 489.143, Florida Statutes (2003), the maximum amount that the Recovery Fund can pay on a single claim is $25,000.00. Thus, the claim for restitution from the Recovery Fund is APPROVED in the amount of $1,025.00. In accordance with rule 61G4-21.005, Florida Administrative Code, the Secretary of the Florida Department of Business and Professional Regulation is directed to pay the claim from the Recovery Fund after forty-five days from the date upon which the Final Order is filed with the Agency Clerk. Pursuant to section 489.143(6), Florida Statutes (2003), upon payment of the claim from the Recovery Fund, Licensee's licensure to practice contracting is AUTOMATICALLY SUSPENDED without any further administrative action. Pursuant to section 489.143(2), Florida Statutes (2003), upon receipt by Claimant under section 489.143(1), Florida Statutes (2003) of payment from the Recovery Fund, Claimant shall assign his or her additional right, title, and interest in the judgment or restitution order, to the extent of such payment, to the Board, and thereupon the Board shall be subrogated to the right, title, and interest of the Claimant; and any amount subsequently recovered on the award, judgment or restitution order by the Board, to the extent of the right, title, and interest of the Board therein, shall be for the purpose of reimbursing the Recovery Fund. This Order shall become effective upon filing with the Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this 21st day of June, 2004. Appended to the order was the following Notice of Right of Appeal: You are hereby notified that mediation is not available in this matter. Pursuant to Section 120.569, Florida Statutes, you may seek review of the above by filing a request for hearing with the Executive Director of the Board at 1940 North Monroe Street, Tallahassee, Florida 32399-2202 within twenty-one (21) days of the filing of this Order. Upon request, you will receive an informal hearing pursuant to section 120.57(2), Florida Statutes. In the alternative, you may request a formal hearing pursuant to Section 120.57(1), Florida Statutes, if there are material facts in dispute; if you request a formal hearing, the petition must contain the information required by Rule 28-106.201, Florida Administrative Code, including specification of the facts which are in dispute. If you request a hearing, you have the right to be represented by an attorney or other qualified representative to take testimony. On August 12, 2004, Petitioners filed a Request for Hearing, complaining that they "should be awarded at least $3,475.00" to be adequately compensated for all of the repairs they had to make to their roof as a result of Broward Roofing, Inc.'s failure to meet its responsibilities. On August 30, 2004, the Board referred the matter to DOAH "for the assignment of an Administrative Law Judge to conduct a formal hearing" pursuant to Section 120.57(1), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue an order dismissing Petitioners' Request for Hearing challenging the Board's order, rendered July 29, 2004, disposing of their claim for monies from the Fund, but allowing them, if they so desire, to request that that order be vacated and re-rendered so that they will have the opportunity to file a timely appeal in accordance with Section 120.68, Florida Statutes. DONE AND ENTERED this 28th day of December, 2004, in Tallahassee, Leon County, Florida. S __ STUART M. LERNER 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 28th day of December, 2004.
The Issue Whether Petitioner is entitled to attorneys? fees and costs as a prevailing small business party pursuant to section 57.111, Florida Statutes, and if so, in what amount.
Findings Of Fact On or about January 14, 2011, an application to construct a swimming pool and spa with screen enclosure was filed with the City of Deland by Bill Coody Custom Pools (Coody), a construction contractor. The application was reviewed by Mr. Joe Crum, a Deland building official involved with construction permit approval. Mr. Crum rejected the application because the design criteria and details for the design of the screen enclosure appeared to constitute a master design manual, but did not indicate that the documents had been peer-reviewed and did not indicate the required training for users of the manual. A master design manual is a generic engineering package prepared by a licensed engineer or architect, which provides engineering guidance for construction when used along with a contractor?s own site-specific design drawing. The documents submitted to Mr. Crum included generic load and span tables for various framing elements and generic construction details for screen enclosures, and appeared to leave selection of various elements to contractors depending on the site-specific design. The documents had been provided to Coody by Mr. Frank Cleaton, P.E. Mr. Crum contacted Mr. Cleaton on or about January 24, 2011, about the failure of the documents to meet the requirements for master-design-manual engineering. After Mr. Crum?s inquiry, Mr. Cleaton prepared a letter dated January 26, 2011, authorizing Coody to use “my sealed engineering set of design criteria and details for the design of aluminum structures.” The letter further provided in relevant part: In accordance with Florida Statute 489.113(9), this sealed engineering set is intended to be used as a reference in conjunction with the contractor?s own site- specific design drawing. The contractor?s drawing is not required to be sealed by me as the engineer of record as per FS 489.113(9). It is only required to be in compliance with what is set forth in my sealed design set. Design documents for the 135 Birchmont Drive screen enclosure were also signed and sealed by Mr. Cleaton on January 26, 2011, after the inquiry from Mr. Crum. These included only one site- specific document. All other drawings contained the same generic load and span tables, with some elements of those tables circled or otherwise identified for incorporation into the Birchmont structure. The site-specific drawings for the Birchmont screen enclosure were submitted with a permit application filed by Coody. According to the drawings of the Birchmont screen enclosure, the structure is less than 1,200 square feet in area and less than one story in height. The Florida Engineers Management Corporation (FEMC) provides administrative, investigative, and prosecutorial services to the Board of Professional Engineers. On or about February 9, 2011, FEMC received an e-mail from Mr. Crum alleging that Davis and Cleaton Engineering was providing a master design manual for aluminum structures that did not meet statutory requirements for the use of master design manuals. The following day, Ms. Wendy Anderson,1/ an investigator for FEMC, requested additional information from Mr. Crum. On or about February 11, 2011, at about 11:47 a.m., FEMC received an e-mail from Mr. Crum referencing "improper master file engineering." Attached to the e-mail was a copy of the permit application package for the screen enclosure located at 135 Birchmont Drive, Deland, Florida, that had been submitted to the Deland Building Department by Coody. The permit application package included documents signed and sealed by Frank Cleaton, P.E. The documents provided to FEMC by Mr. Crum did not identify any third-party peer reviewer or detail the training requirements for those using the manual. The determination that there was enough information to open an investigation was made by Ms. Anderson in consultation with the FEMC prosecutor, Mr. John Rimes. FEMC had reasonable cause to believe that Mr. Cleaton had violated section 489.113(9), Florida Statutes (2010), based upon the e-mails from Mr. Crum and the documents he provided. After receiving the copy of the "file with the improper master engineering," Ms. Anderson opened a Complaint File with FEMC, Case No. 2011007349. On March 22, 2011, Ms. Anderson provided notice of the investigation to Mr. Cleaton. The only formal pre-Probable Cause Panel notification given to Mr. Cleaton of any pending complaint regarding the design for the Birchmont project was the letter sent on March 22, 2011. The March 22, 2011, letter from Ms. Anderson advised Mr. Cleaton that he had the option to submit a written response to the complaint for consideration by legal staff and the Probable Cause Panel (PCP) of the Board. It also advised him that he could submit a written request for a copy of the investigative file that would be provided to him once the investigation was complete. Mr. Cleaton never requested that he be provided a copy of the investigative file. A letter dated March 31, 2011, from Mr. Cleaton to Ms. Anderson was received by FEMC on or about April 11, 2011. The letter stated that Mr. Cleaton had “clearly and specifically told the building department” that the package was not to be considered a master design manual. The response also stated that a “signed and sealed drawing” had been provided “as if it were” a site-specific project. The letter concluded by saying that no further “packages” would be issued until the matter was resolved, and that if necessary, Mr. Cleaton would “participate in a peer review.” The construction documents that had been given to Coody appeared to be a master design manual to the Deland building officials, FEMC staff, and later to members of the PCP. Mr. Joseph Berryman is a licensed professional engineer experienced in the design and analysis of commercial and industrial structures. Mr. Berryman has never supervised construction or conducted a final inspection of an aluminum patio shelter or screen enclosure. Mr. Berryman is an expert in structural engineering. He was well known to the members of the PCP as a consulting expert for the Board. He had rendered expert opinions to the Board in several recent license discipline proceedings involving aluminum screen enclosures. At Ms. Anderson?s request, Mr. Berryman reviewed the e-mail correspondence from Mr. Crum to FEMC, the correspondence from Mr. Crum to Coody, the January 26, 2011, authorization letter from Mr. Cleaton for Coody, the two-page permit application, and a one-page drawing showing the framing plan and elevations for the Birchmont screen enclosure. In a letter to Mr. Rimes dated April 15, 2011, Mr. Berryman concluded that the statements in the Coody authorization letter were consistent with the definition of master design manual system as addressed by section 489.113(9). He further concluded that if Mr. Cleaton wanted to continue to utilize a master design manual, he would need to obtain peer review and comply with the other requirements set forth in that statute. On or about May 31, 2011, Mr. Crum sent an e-mail to Ms. Anderson with an attached copy of an unsigned Uniform Complaint Form, which is utilized by the Board to document complaints. The e-mail stated that Mr. Crum thought he had sent the complaint form earlier, but then realized he had not done so. The e-mail asked if FEMC needed him to fax another copy of the Uniform Complaint Form with his signature on it. The complaint form outlined Mr. Crum?s earlier allegation that Mr. Cleaton was providing a master design manual for aluminum structures that did not meet the third-party peer review or training requirements of section 489.133(9), Florida Statutes. There was no evidence that FEMC ever contacted Mr. Crum in response to his inquiry about the need for another copy of the complaint form with his signature. Mr. Crum never provided a signed copy of his complaint to FEMC. There was no evidence of any prejudice to Mr. Cleaton resulting from the fact that the complaint was not signed. In light of Mr. Cleaton?s April 11, 2011, representation to FEMC that the documents were not being utilized as a master design manual, FEMC decided to “take him at his word” and consider the documents to have been prepared as signed and sealed engineering for a site-specific project. FEMC staff decided to investigate the engineering in the documents that had been provided to them, and asked Mr. Berryman to review them as part of the investigation. FEMC had no reasonable cause to believe that there was anything wrong with the engineering contained in the documents for the screen enclosure. Ms. Anderson did testify that, in her experience, a high percentage of construction plans for aluminum screen enclosures contained engineering flaws, but she was not familiar with either Mr. Cleaton or the Birchmont structure and did not have any information suggesting that these particular engineering documents were deficient. FEMC?s decision to investigate the engineering contained in the documents that had been given to them in connection with the complaint did not initiate a new investigation, but instead continued the investigation that had already begun, albeit taking that investigation in a new direction. Mr. Cleaton was not informed by FEMC of this change in the direction of the investigation. Mr. Berryman completed calculations for his review of the construction plans for the screen enclosure prior to June 20, 2011, but he did not provide a copy of those calculations with his report. In a letter addressed to Mr. Rimes dated June 20, 2011, Mr. Berryman identified various omissions of required information as well as flaws in the engineering designs and design assumptions contained in the construction documents, including the identification of several overstressed elements and violations of the Florida Building Code (FBC or the Code). Mr. Berryman concluded that, “As indicated above, Mr. Cleaton has failed to utilize due care in performing in an engineering capacity and has failed to have due regard for acceptable standards of engineering principles.” The June 20, 2011, report from Mr. Berryman was a competently prepared and adequately sourced engineering opinion. Any procedural errors or irregularities in the investigative stage did not impair Petitioner?s defense. Based substantially upon Mr. Berryman?s report, a proposed Administrative Complaint was prepared. Four counts alleged that the engineering documents for the Birchmont structure failed to include required information (counts 4A through 4D); three counts alleged that specific elements used in the Birchmont structure were overstressed at 2007 FBC prescribed design loading (counts 4E through 4G), alleging, for example, that the “2x5 SMB roof beam elements of the subject structure are significantly overstressed at 2007 FBC (Table 2002.4) prescribed design loading”; four counts alleged elements in column and beam schedules that were not utilized for the Birchmont structure were overstressed at 2007 FBC prescribed design loading (counts 4H, 4J, 4L, and 4M); two counts alleged that elements contained in column and beam schedules, only some of which were used in the Birchmont Structure, were overstressed at 2007 FBC prescribed design loading (counts 4I and 4K); and the two remaining counts (4N and 4O) contained generic allegations that the elements of the screen enclosure and the elements in the span tables were not engineered in accordance with the strength requirements of the 2007 FBC. On September 20, 2011, the PCP of the Board of Professional Engineers found probable cause to charge Mr. Cleaton with violating section 471.033(l)(g), Florida Statutes, by being negligent in the practice of engineering. The transcript of the probable cause proceeding shows that Mr. Rimes summarized the case for the members of the PCP and that they did not discuss the allegations prior to their vote finding probable cause. Mr. Rimes incorrectly stated that FEMC had received a complaint with regard to the quality of the work. Each member indicated that he had thoroughly read and reviewed the materials provided prior to the meeting. The transcript also shows some discussion of the facts of the case, but only after the vote. Mr. Rebane?s questions showed that he was aware that at different times during the investigation, issues regarding both master design omissions and deficient engineering in the signed and sealed engineering documents had been considered. Mr. Hahn?s comments showed he was aware that Petitioner had asserted that the drawings were signed and sealed documents for the Birchmont structure and even indicated that he believed Petitioner “made things worse for himself” by doing so. The members of the PCP were generally familiar with the extensive materials that were provided to them, the details of the case, and Mr. Berryman?s opinion. The PCP had previously been provided copies of the Issue Analysis and Staff Recommendation; the Investigative Report; the letter from Mr. Crum to Coody regarding the plans for the Birchmont screen enclosure; several e-mails between Ms. Anderson and others, including Mr. Crum, Mr. Rimes, and Mr. Cleaton; the authorization letter for Coody from Mr. Cleaton; the Application for Permit submitted for the Birchmont structure to the City of Deland; the engineering drawings for the structure; the letter dated March 31, 2011, from Mr. Cleaton to Ms. Anderson in response to the original complaint; the April 15, 2011, opinion letter from Mr. Berryman to Mr. Rimes, but without the second page; the unsigned Uniform Complaint Form submitted by Mr. Crum on or about May 31, 2011; the second opinion letter from Mr. Berryman to Mr. Rimes, dated June 20, 2011; and a draft of the proposed Administrative Complaint. The missing second page from the April 15, 2011, opinion letter continued a list of the documents that had been reviewed by Mr. Berryman, set forth the allegations made by Mr. Crum, and contained the following statement: “The problem at the building department was apparently resolved by the submittal of signed and sealed site-specific engineering for the project by Mr. Cleaton.” The missing page did not contain Mr. Berryman?s opinion and contained no information contradictory to the conclusions in the opinion letter. While Petitioner argues that the above-quoted sentence dispelled “any scintilla of justification” for the investigation, this conclusion is rejected. In fact, notwithstanding Mr. Cleaton?s statement to the building department that the documentation was not to be considered a master design manual, the opinion letter goes on to conclude that this statement of Mr. Cleaton?s was inconsistent with other statements he made and that the documents fail to include elements required by section 489.113(9). The absence of the missing page was not a material flaw in the probable cause proceedings. First, the two pages that were provided to the PCP accurately represented the entire opinion letter. Second, the April 15, 2011, opinion letter addressed Mr. Crum?s original allegations as to the failure to comply with the requirements of section 489.113(9), relating to master design manuals, which was not the ultimate basis for the Administrative Complaint. It was Mr. Berryman?s subsequent opinion letter dated June 20, 2011, also provided to the PCP, which provided the basis for the Administrative Complaint. Mr. Berryman?s calculations were not included among the materials given to the PCP. An Administrative Complaint reflecting the September 20, 2011, findings of the PCP was issued on September 30, 2011, and was subsequently served upon Mr. Cleaton. The Administrative Complaint was styled “Florida Board of Professional Engineers v. Frank Cleaton, P.E.” It was accompanied by an Election of Rights form, headed with “State of Florida, Florida Engineers Management Corporation,” advising Mr. Cleaton of his right to request an informal or formal hearing within 21 days of receipt of the Administrative Complaint. The complaint was filed by FEMC on behalf of the Board. The Department of Business and Professional Regulation (the Department) played no active role in the investigation or prosecution of the case. FEMC did not notify the Deland Building Department or the owner of the screen enclosure of its finding of "17 serious material deficiencies." Pursuant to Mr. Cleaton?s demand, an evidentiary hearing under sections 120.569 and 120.57(1), Florida Statutes, was scheduled to be heard on September 25, 2012. On or about March 2, 2012, Mr. Berryman submitted to FEMC the calculations he had performed prior to his June 20, 2011, opinion letter to FEMC, so that they could provided to Petitioner. Mr. Cleaton?s expert, Mr. Thomas Campbell, submitted a report dated September 12, 2012, which was provided to FEMC the following day. Mr. Campbell concluded that the Birchmont screen enclosure plans met the “evolving” FBC (2007-2010)2/ and the Aluminum Design Manual (2005). He concluded the screen enclosure was adequately built and safe. His report asserted that any errors in the engineering tables that were not actually used in constructing the Birchmont structure should be considered irrelevant. The report stated that all maximum member moments were “well below allowable” and all member interaction ratios (axial and bending) were well below 1.0, with one exception. The 2 x 2 section exceeded that ratio by less than 9 percent and was in tension. The report concluded that this was well within the acceptable range for the conservative evaluation that was conducted. Mr. Berryman reviewed Mr. Campbell?s report and concluded that his analysis failed to determine allowable stresses for the aluminum framing members in accordance with the 2005 Aluminum Design Manual, as was required by the FBC. Mr. Berryman found that Mr. Campbell?s opinions did not comply with accepted engineering practice and that his analyses were unreliable and replete with errors. However, Mr. Berryman also examined some load test results for self-mating beams that had been prepared for “Aluminum Enclosures Suppliers Council” and “Town and Country Industries, Inc.,” aluminum manufacturing companies in the State of Florida, which had been supplied along with Mr. Campbell?s opinion. These test results were proprietary information that was not available to Mr. Berryman prior to Mr. Campbell?s report. While these data were incomplete and had not been verified by industry professionals and regulatory authorities, Mr. Berryman concluded that they suggested at least the possibility of an alternate method of determining allowable stresses that might be helpful to Mr. Cleaton?s designs. Although the data in the test reports diverged from the design methodology described as acceptable in the FBC, the Code allows some departures from these standards when an alternative analysis has been reasonably justified. Mr. Berryman therefore recommended that many of the charges in the Administrative Complaint should not be pursued until the proprietary data could be validated or invalidated. On September 21, 2012, Respondent filed an unopposed Motion to Cancel Hearing, Relinquish Jurisdiction and Close File. An Order Closing File was issued by the administrative law judge on September 21, 2012. On September 27, 2012, Respondent filed a Motion to Dismiss Administrative Complaint and Close File with the Board. Petitioner did not respond to the Motion. On November 7, 2012, the Board entered its Final Order dismissing the Administrative Complaint filed against Petitioner. Mr. Cleaton is a prevailing small business party within the meaning of section 57.111, Florida Statutes. On November 9, 2012, Petitioner filed a Motion for Attorney Fees and Costs with DOAH seeking attorneys' fees and costs under the provisions of section 57.111. Mr. Cleaton incurred attorneys? fees and costs in defending his license against the Administrative Complaint initiated by the Board. Attorneys? fees in the amounts of $11,456.25 for Sheppard, White, and Kachergus, P.A., and $30,247.50 for McCabe Law Group, P.A., are reasonable. Mr. Cleaton retained the services of Mr. Campbell to be his expert witness. Mr. Campbell in turn enlisted the services of NuVision, an engineering company he owns, to assist in preparations for his testimony. Mr. Campbell is an expert in structural engineering. Mr. Campbell and NuVision are based in Pennsylvania. The claimed expert witness fees of $48,037 are excessive. This amount reflected some 176 hours spent by three engineers, 16 hours for their administrative support, and $22 for travel expended at NuVision, as well as an additional 65 hours of time spent by Mr. Campbell, 30 hours of administrative support for him, and $715 in travel spent by Mr. Campbell?s firm, TEC Enterprises. Testimony offered by Mr. Campbell indicated that the claimed hours represented only about half of those actually expended, and that none of the claimed costs were for time spent in learning specific requirements unique to Florida, such as the FBC. A reasonable cost for Petitioner?s expert witness was $15,000. Mr. Berryman credibly testified that 100 hours of time would have been ample for the engineering work; that $250 per hour for a supervising engineer, $200 per hour for a senior engineer, and no more than $100 per hour for an entry-level engineer were reasonable rates; and that senior engineers were not required to do the necessary calculations. Allocating 25 hours to Mr. Campbell as supervising engineer and 75 hours for entry-level engineers to make the calculations, and applying the hourly rates mentioned in this paragraph would be reasonable. Adding another 5 hours of Mr. Campbell?s time at the supervising engineer rate for the final preparation of his testimony and actual hours at the deposition is reasonable. No special circumstances exist that would make an award of fees and costs unjust. The documentation provided to the PCP was not misleading, was not missing critical information, and contained required allegations of fact. The PCP?s finding was supported by expert opinion and had a solid basis in law and fact. The PCP?s actions in directing the filing of an Administrative Complaint were substantially justified.
The Issue The issue posed for decision herein involves a determination of an appropriate penalty for Respondent's alleged violation of Section 489.127(1)(d), Florida Statutes, which prohibits the giving of false or forged evidence to the Board for the purpose of obtaining a certificate. At the outset of the final hearing, the parties entered into an oral stipulation which will be set forth hereinafter in detail.
Findings Of Fact Based upon my observation of Respondent, the arguments of counsel, the posthearing memorandum and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint signed July 1, 1982, Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, seeks to revoke Respondent's license to practice the profession of contracting and to impose a civil penalty based upon conduct set forth hereinafter. As stated, the below findings were admitted by Respondent in an oral stipulation read into the record compiled at the final hearing. Respondent is a registered residential contractor having been issued license number RR0040021. Respondent's last known address is 510 North Riverside Avenue, Edgewater, Florida, 32032. On August 13, 1981, Respondent applied to sit for the certified contractor's examination in order to become certified as a building contractor. As part of the application for the certified contractor's examination described above, Respondent provided a "certificate in support of applicant's experience qualifications," which was sworn and subscribed to by Charles R. Cook, a foreman for Edwin Peck, Jr., a certified general contractor. In the "certificate in support of applicant's experience qualification," Cook stated that Respondent occupied the position of superintendent or foreman for Edwin Peck, Jr., from February 4, 1978, until May 1, 1979. Respondent was employed by Edwin Peck, Jr., for two (2) weeks, working full-time and two (2) weeks working part-time in February of 1979, and for one (1) day in March of 1979. The affidavit of Mr. Cook was altered by Respondent. As part of the application for the certified contractor's examination described above, Respondent included a letter signed by Joseph R. Gober, President of Florida Sun Control Products, Inc. In the letter, Gober stated that Respondent was employed by Florida Sun Control Products, Inc., as a superintendent from May, 1977, through January, 1978. Respondent has never been employed by Florida Sun Control Products, Inc., as an employee; however, he did work with said company as an independent contractor, supervising construction activities. Respondent, while admitting the above facts, considers that a revocation of his certificate is not warranted under the circumstances. Respondent points to the fact that he has not sought any contracting job in the private or residential areas, turning instead only to commercial ventures. Further, Respondent notes that no one has been injured by his misdeeds and that he has benefited from his past mistakes as admitted in this cause. Respondent considers that the imposition of a small civil (administrative) fine is ample punishment for his acts in connection with the filing of his application for certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's license number RR0040021 be placed on probation for a period of dine (1) year and that an administrative fine in the amount of $250.00 be imposed. RECOMMENDED this 2nd day of November, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 2nd day of November, 1982. COPIES FURNISHED: Michael Egan, Esquire Post Office Box 1386 Tallahassee, Florida 32302 James Linnan, Executive Director Michael Wayne Scott Florida Construction Industry 510 North Riverside Drive Licensing Board Edgewater, Florida 32032 Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DPR Case No. 0021731 DOAH Case No. 82-2209 MICHAEL W. SCOTT, RR 0040021 N Michael W. Scott Construction, Inc. 501 North Riverside Avenue Edgewater, Florida 32032, Respondent. /
The Issue The issue in this case is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalty is appropriate.
Findings Of Fact Based upon the testimony of the witnesses and the evidence presented and the entire record in this proceeding, the following material and relevant facts are found. At no time material hereto was Respondent, Donald Clark, licensed by the State of Florida Construction Industry Licensing Board to engage in construction contracting. At no time material hereto was Cancun Development Company ever qualified or certified by any State of Florida agency as a certified contractor. With knowledge of that he was not licensed by the State of Florida to solicit, engage in, nor contract for construction work, Respondent entered into an oral agreement with homeowner Ms. Eichar to build a second-story addition to her home, located in Indian Rocks Beach, Florida, for a contract price of $30,000.00. Respondent, who was paid by Ms. Eichar a total of $25,000.00, subcontracted with Mr. Erwin, a licensed electrical contractor, to do the electrical work at the Eichar's residence for $2,364.00. Respondent, after notice, failed to attend the formal final hearing regarding this matter. The investigative and prosecution costs to the Department of Business and Professional Regulation, excluding cost associated with attorney time, were $550.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered by the Department as follows: Finding Respondent, Donald Clark, guilty of having violated Subsection 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint herein filed and imposing as a penalty an administrative fine in the amount of $5,000.00. Assess costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $550.70. DONE AND ENTERED this 23rd day of July, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2002. COPIES FURNISHED: Donald Clark 813 East Bloomingdale Avenue Suite 252 Brandon, Florida 32720 Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
