Findings Of Fact The Respondent, Joseph B. Smith is the holder of a registered electrical contractor's license, number ER 0007369, issued by the State of Florida. During the month of May, 1981, the Respondent obtained an electrical permit for work on apartments located at the corner of Stockton and Forbes Streets, in Jacksonville, Florida. The work was contracted for by Ronnie D. Norvelle. Gary Moore performed the electrical work on the project. Neither of these men was employed by or under the supervision of the Respondent. On March 3, 1982, the Construction Trades Qualifying Board for the City of Jacksonville, Florida, directed that a letter of reprimand be placed in the Respondent's permanent record. The basis for the action taken by the Construction Trades Qualifying Board for the City of Jacksonville, Florida, was the violation of Section 950.111(a), Code of Ordinances of the City of Jacksonville.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number ER 0007369 held by the Respondent, Joseph B. Smith, be revoked. THIS ORDER ENTERED this 28th day of June, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. Joseph B. Smith 6335 Park Street Jacksonville, Florida 32205 Allen R. Smith, Jr., Executive Director Electrical Contractors Licensing Board 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Electrical Contractors' Licensing Board should discipline the Respondent for violating section 489.533(1)(a), Florida Statutes (2013),1/ by violating section 455.227(1)(j), which prohibits "[a]iding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to this chapter, the chapter regulating the profession, or the rules of the department or the board."
Findings Of Fact The Respondent, Michael Ellis, is licensed in Florida as an electrical contractor and holds licenses EC0000680 and EC13003559. He has been licensed in Florida since 1986 and has not been disciplined prior to this case. In the summer and fall of 2013, the Respondent was the primary qualifying agent of M. Ellis Electrical, Inc. (Ellis Electrical). In the summer and fall of 2013, Clark Huls was not licensed as an electrical contractor in Florida. In August 2013, Ellis Electrical had a subcontract with Powerhouse, Inc. (Powerhouse), which had a contract with 7-Eleven, Inc. (7-Eleven), for the installation of hot food cabinets at several different 7-Eleven retail locations in Florida. The installation required electrical work (including subpanels, new circuits, outlets, and breakers) and had to be done by a licensed electrical contractor. Someone at Powerhouse referred Huls to the Respondent, and the Respondent hired him to do the installations for $1,400 for each of nine different 7-Eleven jobsites. It was the Respondent's initial intent to hire Huls as a subcontractor. The evidence is disputed and not clear as to exactly what Huls represented to the Respondent about his license status when the Respondent hired him. The evidence is clear that Huls did not provide him with licensure and insurance information at that time and was supposed to provide this information to the Respondent at the first jobsite. The Respondent did not initially check DBPR's website to verify Huls' license status, which was the prudent and appropriate thing for him to have done. The first work performed by Huls for the Respondent was on August 21, 2013. The Respondent was there to supervise and direct the work. Huls did not provide license and insurance information. By this time, the Respondent clearly knew or should have known that Huls was not licensed. At the third installation Huls performed, on August 24, 2013, the Respondent had an employee named Jason Ippolito deliver an employment package to Huls. Huls refused to complete and sign the employment paperwork because it would change the terms of his agreement with the Respondent to be paid $1,400 per jobsite. The Respondent allowed Huls to continue to work on installations while trying to resolve the subcontract/employment issue. In all, Huls completed nine installations between August 21 and September 3, 2013. When Huls asked to be paid $1,400 per jobsite, as originally agreed, the Respondent refused to pay because Huls was not licensed as a subcontractor and refused to complete the paperwork to be paid as an employee. Huls then placed liens on all nine 7-Eleven properties and contacted Powerhouse to be paid. In order to save its relationship with 7-Eleven, Powerhouse paid Huls $5,806 and deducted that amount from what it owed Ellis Electrical. On October 12, 2013, the Respondent filed a DBPR complaint against Huls for subcontracting without a license. DBPR filed an Administrative Complaint against Huls for unlicensed activity. Criminal prosecutions of Huls also were filed and were pending at the time of the final hearing in this case. In mitigation, in addition to his clean record as a long-time licensee, the Respondent presented that he was dealing with his wife's serious health issues during the summer and fall of 2013, which affected his ability to manage his jobsites. In addition, no consumer or member of the public suffered financial harm. Ultimately, the financial harm was borne by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Electrical Contractors' Licensing Board find the Respondent, Michael Ellis, guilty as charged, fine him $1,000, require him to pay reasonable investigative costs, and take two additional hours of continuing education with an emphasis on laws and rules. Jurisdiction is retained for 30 days after the final order to determine reasonable investigative costs if the parties cannot reach an agreement. DONE AND ENTERED this 13th day of March, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2015.
Findings Of Fact The School Board of Palm Beach County opened bids on August 9, 1989, which had been solicited in July 1989, for the purchase of a language laboratory, solicitation #SB 90-84F. The apparent low bidder was ASC Electronic, Inc. (ASC). The next lowest bidder was Mavco, Inc., d/b/a Miami Audio-Visual Company (Mavco). The other bidders were Florida State AV and Communications, Inc., and Stevens Learning Systems, Inc. The bid of ASC was $46,770.00, that of Mavco was $52,040.00. Mavco filed a protest in which it alleged that the bid by ASC was not responsive. After informal attempts to resolve the protest failed, Mavco filed a formal written protest of the school board's preliminary decision to award the bid to ASC. The timeliness of the protest has not been challenged. Mavco alleges that the equipment offered by ASC does not comply with paragraph 3F of the General Conditions of the invitation to bid, because the power supply for the language laboratory has not been approved by Underwriters Laboratories (UL). It was also alleged that the power supply is not fully insulated. The relevant provisions of the General conditions of the invitation to bid provide 1/ 3F) UNDERWRITERS' LABORATORIES: Unless otherwise stipulated in the bid, all manufactured and fabricated assemblies shall be U.L. listed or re-examination listing where such has been established by U.L. for item(s) offered and furnished. * * * 5. BRAND NAMES: Use of a brand name, trade name, make, model, manufacturer or vendor catalog number in specifications is for the purpose of establishing a grade or quality of material only. It is not the Board's intent to rule out other competition, therefore, the phase OR ACCEPTABLE EQUAL is added. However, if a product other than that specified is bid, it is the vendor's responsibility to submit with the bid brochures, samples and/or detailed specifications on item(s) bid. The Board shall be sole judge concerning the merits of bids submitted. Bidder shall indicate on the bid form the manufacturer's name and number if bidding other than the specified brands, and shall indicate ANY deviation from the specifications as listed. Other than specified items offered requires complete descriptive technical literature marked to indicate detail(s) conformance with specifications. * * * 22. SPECIFICATIONS: Any omissions of detail specifications stated herein that would render the materials/service from use as specified will not relieve the bidder from responsibility. * * * 26. SPECIAL CONDITIONS: Any and all Special Conditions that may vary from the General Conditions shall have precedence. (all emphasis in original) The minimum technical specifications for the school board's solicitation begin at page 5 of the invitation to bid. Those for the main console are found at page 9; the first is that the language laboratory console shall have a "fully insulated UL Approved student power supply." The location of this specification is somewhat confusing, because the laboratory is divided into the main console for the instructor and student positions. The quoted specification requiring UL listing applies only to power supplies for student positions, not the console, and therefore appears to have been misplaced in the specifications. It is not clear that the student positions in the language lab need to have any power supply of their own. If they do, however, they must be fully insulated and UL Approved. The bid submitted by ASC states, at page 10, that the language laboratory it bid was its own model AS4M. Its bid package does not state that ASC bid a product which varied from the school board's technical specifications. Nothing in the invitation to bid requires the bidder to list or describe a specific power supply which will be provided as a component of the language laboratory console master desk or of the student positions. Mavco's own bid submission does not state whether its student power supply (if any) is UL Approved. After the school board had designated ASC as the apparent low bidder in its bid tabulation, the school board inquired about the Underwriters Laboratory approval status of the language laboratory ASC would provide. 2/ ASC responded on August l8, 1989, as follows: The only component that would normally require a UL listing is our internal power supply. Since our entire system operates on 24VAC, UL approval for other than the power supply is not required. The high-quality German manufactured power supply has a more stringent European International Standard for meeting the requirements of the Common Market than that required by UL. If however, a UL Approved power supply is requested, we will substitute a UL Approved power supply in our console. We, therefore, respectfully request that this letter be accepted as our certification that the power supply we will install will, in every way, meet or exceed UL requirements or, as directed by you, we will substitute a fully UL Approved power supply in our console. (emphasis original) After further correspondence, on August 25, 1989, ASC wrote to the school board a brief letter, which states We appreciate this opportunity to submit our UL Approved power supply LAMBDA Model L0S-Y- 24. The attached card indicates that UL #E45040 (M) shows that this power supply is listed by UL and is in compliance with their standards. By letter dated August 29, 1989, ASC proposed to use another power supply, from Acme Transformer, Inc. The power supply is obviously a necessary component of the entire language laboratory. It is not clear whether a separate power supply is a necessary part of the student positions on the model ASC; it appears that the only power supply is part of the master console. In the invitation to bid, the school board not only prescribed technical specifications, but also described the laboratory sought on its Bid Summary Sheet as the Tandberg Educational 15-10 language laboratory, although the board permitted a vendor to bid an equal product. The analysis of the Tandberg 15-10 language laboratory performed by the national sales manager of Tandberg Educational, Inc., shows that the Tandberg laboratory is not UL Approved in its entirety; its main console power supply is not UL Approved. Bidding a laboratory with no UL approval for the main console power supply is consistent with the board's technical specifications. Mavco lays great stress on the use of the word "substitute" in the August 18, 1989, letter from ASC to the school board. ASC may have intended to supply a power unit for the main console which was not UL Approved; under the technical specifications it was not obligated to provide an approved unit. The school board's purchasing department raised the UL Approval issue with ASC, which then committed to provide a UL Approved main power supply. Lack of UL Approval for the power supply ASC first intended to use is not an indication that that power supply was in any way inadequate. There is no proof in the record that the power supply which would have been provided would not have met UL standards, had it been tested. The use of the Tandberg language laboratory by the school board as its benchmark for grade or quality, which incorporates a power supply which is not UL Approved, shows that UL Approval of the main console power supply was not required.
Recommendation It is recommended that the bid protest filed by Miami Audio-Visual Company be rejected and the bid submitted by ASC Electronic be found responsive. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of November, 1989. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee. Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th, day of November, 1989.
The Issue Whether Petitioner, William P. Pearson, Jr., is entitled to recover attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111 Florida Statutes and Rule 221-6,35. BACKGROUND AND PROCEDURE At hearing, Petitioner presented the oral testimony of William P. Pearson, Jr. and had admitted five exhibits. Respondent presented the oral testimony of Richard Hartog, Investigator, and Douglas A. Shropshire, the Department of Professional Regulation's senior attorney for the prosecution of all Florida Construction Industry Licensing Board cases, and had admitted five exhibits. At close of formal hearing, Petitioner elected to make oral closing argument and to file no post-hearing proposals. Respondent elected to file a transcript of proceedings and written proposed findings of fact and conclusions of law within 10 days of filing transcript. Respondent's proposals are ruled on within the appendix to this recommended order pursuant to Section 120.59(2) Florida Statutes.
Findings Of Fact Petitioner seeks to recover attorney's fees and costs associated with his defense against charges contained in an administrative complaint filed and prosecuted by the Department of Professional Regulation which was styled, Department of Professional Regulation, Construction Industrv Licensing Board v. William P. Pearson, Jr., DOAH Case No. 85-0672. The administrative complaint in DOAH Case No. 85-0672 contained two counts. Count I alleged a violation of Section 489.129(1)(c) through violation of Section 455.227(1)(a) Florida Statutes (1983), which statutory section addresses making misleading, deceptive, or fraudulent representations in the practice of the profession of construction. Count II alleged a violation of Section 489.129(1)(d) Florida Statutes (1983) by not complying with the specific escrow requirements imposed by the consumer protection Statute, Section 501.1375(2) Florida Statutes and violation of Section 489.129(1)(m) Florida Statutes (1983), which latter statutory section addresses gross negligence, incompetence or misconduct in the practice of contracting. The state agency was therefore not a nominal party only but was an accusing and principal party. Petitioner seeks an award of attorney's fees in the sum of $3,568.75 together with costs of $11.10. Respondent, in its Amended Response to Petitioner's Amended Motion for Attorney's Fees and Costs, did not challenge the reasonableness of the attorney's fees and costs set forth in Petitioner's affidavit attached and incorporated in his Amended Motion and specifically stipulated to reasonableness and necessity at formal hearing. Accordingly, the foregoing amounts are found to be necessary and reasonable. Pearson Construction Co., Inc.'s domicile during the whole of DOAH Case No. 85-0672's initial prosecution was Charlotte County, Florida. It had no employees other than William P. Pearson, Jr. and his wife, who worked without compensation. William P. Pearson, Jr. was the president and qualifying agent of Pearson Construction Co., Inc. which was a Florida corporation at all times material to the initial prosecution. The combined net worth of William P. Pearson, Jr. and of Pearson Construction Co., Inc. never exceeded two million dollars and presently petitioner Pearson's personal net worth does not exceed two million dollars. In early 1986, prior to initiating this instant fee and costs recovery case, Mr. Pearson failed to update payment of his corporate fees and Pearson Construction Co., Inc. was automatically dissolved by the secretary of State. Respondent Department of Professional Regulation (DPR) notified John Vlasek of its intent to investigate his complaint against Petitioner in late July 1984. DPR's investigation was conducted by Investigator Richard Hartog. Mr. Hartog has been employed by the Respondent since November 1982 and has been its investigator since March 1983. He has a degree in criminal justice and 23 years prior experience as a detective with the Police Department of Nassau County, New York. Investigator Hartog was first made aware of vlasek's complaint against Pearson Construction Co., Inc. by way of a memorandum dated July 16, 1984 received directly from the State Attorney's Office for the 20th Judicial Circuit. Attached to the State Attorney's memorandum was a 6 page consumer complaint form signed by John A. Vlasek. Hartog determined that William P. Pearson, Jr. was the qualifying agent for Pearson Construction Co., Inc. and then telephoned DPR's complaint section in Tallahassee, giving the complaint section the basis of the information received from the State Attorney's Office and statutory citations for alleged violations of sections 489.129(1)(m), 455.227(1)(a) and 501.1375 Florida statutes. His purpose was to obtain a complaint number to continue the investigation. Investigator Hartog personally interviewed Petitioner William P. Pearson, Jr. regarding the allegations underlying Vlasek's complaint. Upon completion of the investigation the Department's investigator prepared an investigative report. The investigative report includes a narrative summary of the investigator's interview with Pearson. The investigative report prepared at the conclusion of Hartog's investigation contains the following findings with regard to the investigator's interview of Pearson: Mr. Pearson states he built a good number of homes a year. Last year he built thirty-nine (39) homes. Mr. Pearson was readvised of the allegations made by Mr. Vlasek, a prospective buyer of one of Pearson's spec homes. Mr. Pearson maintains the reason the house was not completed on June 12, 1984, the date originally stipulated in the contract, was the fact Mr. Vlasek was not in a hurry to have the house completed. Mr. Pearson stated he is not aware of the requirements of P.S. 501.1375, therefore, he did not handle the deposit according to the requirement set forth. The money was used to complete the spec house for Vlasek. Mr. Pearson states he received a letter from the First Federal Savings and, Loan of Charlotte County indicating Mr. Vlasek obtained an extension of his loan commitment with the bank. Mr. Malone, who was present, verifies that such a letter was received by Mr. Pearson. Investigator Hartog personally interviewed Barbara Lowe, a loan officer for the First Federal Savings and Loan of Charlotte County. The investigator interviewed Ms. Lowe to determine "whether the bank had, in fact, sent a letter to Mr. Pearson indicating that an extension to Mr. Vlasek's 45-day loan had been extended." The investigative report prepared at the conclusion of Hartog's investigation contains the following findings with regard to the interview of Ms. Lowe: Barbara Lowe, who states she handled the transaction, states no such letter was mailed to Pearson Construction. It would not be appropriate to grant an extension in this type of action. Mr. Vlasek would be required to enter into a separate agreement for an additional forty-five (45) days thereby nullifying the original commitent. This was not done by Mr. Vlasek, therefore, the original commitment expired 5/31/84. Investigator Hartog personally interviewed Tom Hannon, a loan officer with the First Federal Savings and Loan Association in Charlotte County. The investigative report prepared at the conclusion of Hartog's investigation contains the following finding: Mr. Hannon contacted this office to relate that the loan commitment obtained by Vlasek was for a period of forty-five (45) days between 4/19/84 and 5/31/84. There is no record a thirty (30) day extension was asked for or granted according to the records. Investigator Hartog personally interviewed Jack R. Malone who was a salesman for Pearson Construction Co., Inc. The investigative report prepared at the conclusion of Hartog's investigation relates that Malone stated the deposit money was not required to be deposited in an escrow account but when referred to section 501.1375 Malone stated money might have been given to an attorney, presumably for escrow, and further Malone related that: Mr. Vlasek became very impatient because he said very little was being done to complete his house. He was concerned because the terms of his loan agreement was a commitment which expired June 1, 1984. The completed investigative report as forwarded by the investigator to the Department's legal section consisted, in part, of the following: a three page narrative summary of the investigator' s findings; a copy of the memorandum and accompanying executed consumer complaint form; a First Federal savings and Loan Association loan transfer commitment to John and Madelyn Vlasek; a copy of section 501.1375, Florida statutes; a copy of the April 1984 contract between Pearson Construction Company and John and Madelyn Vlasek reflecting a completion date altered from June 12 to June 1, 1984. Douglas A. Shropshire was the DPR attorney responsible for reviewing the investigative report with regard to making a recommendation to the probable Cause Panel of the Construction Industry Licensing Board. The complaint against Petitioner was a "case of first impression" in that DPR had not previously investigated a complaint alleging a violation of the escrow requirement of Chapter 501, Florida Statutes. As a result of the complaint against Petitioner, Mr. Shropshire requested that a law clerk prepare a memorandum of law with regard to the relationship between Section 501.1375, Florida Statutes and the regulation of licensed contractors under Chapter 489 Florida Statutes. On or about September 21, 1984 the law clerk provided Mr. Shropshire with a two page memorandum of law exploring the relationship between Chapter 501, Florida Statutes and the regulation of the construction industry. The memorandum reached the general conclusion that licensed contractors were subject to the provisions of Chapter 501 Florida Statutes. In preparing his recommendation to the Probable Cause Panel, Shropshire reviewed both Hartog's investigative report with all attachments and the law clerk's memorandum of law. On January 10, 1985 DPR, through Mr. Shropshire, made a probable cause recommendation to the Construction Industry Licensing Board Probable Cause Panel. Prior to January 10, 1985 DPR had provided each panel member with a copy of the DPR's probable cause package. The probable-cause package as reviewed by the Probable Cause Panel consisted of the following: a cover sheet setting forth the Subject's name, case number and statutory violations; a proposed administrative complaint; a copy of the narrative portion of the Department's investigative report. The Probable Cause Panel did not review a copy of the Vlasek-Pearson contract which provided it was not contingent on financing, which provided for forfeit to Pearson of Vlasek's deposit upon Vlasek's default, and which provided for escrow of Vlasek's deposit pending closing of the transaction. However, this item was reviewed by the DPR attorney before making the probable cause recommendation and the copy of this item reviewed showed that the completion date had been altered, allegedly by Malone. Petitioner stipulated to the correctness of the procedure employed in impaneling the Probable Cause panel. Each panel member had the opportunity to review the probable cause package before the Probable Cause Panel was convened. Each panel member had the opportunity to familiarize himself with the probable cause materials prior to the meeting. The Chairman of the Probable Cause Panel was Mr. Roy Adams. Mr. Adams is a certified general contractor. The other probable cause member was Mr. Joseph Richards. Mr. Richards is a pharmacist and is a public member of the Construction Industry Licensing Board. Neither Mr. Richards nor Mr. Adams is an attorney. The Construction Industry Licensing Board is not involved in the investigation or prosecution of a complaint. In making the determination of probable cause the panel members discussed the allegations contained in the complaint with both DPR's prosecuting attorney and their independent advisor from the Department of Legal Affairs. On January 10, 1985 the Probable Cause Panel found probable cause to believe Petitioner violated Chapter 489, Florida Statutes. The panel's finding of probable cause included, but was not limited to, the violations alleged by DPR in its recommendation. The Probable Cause Panel directed DPR to file a formal complaint. On January 16, 1985 DPR's Secretary signed a formal administrative complaint charging Petitioner with violating the provisions of Chapters 455 and 489, Florida Statutes reviewed by the panel plus Section 489.129(1)(d) Florida Statutes. Petitioner denied all the allegations in the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On August 20, 1985 a formal hearing was conducted before the undersigned hearing officer. Petitioner interposed the defense that Section 501.1375 Florida Statutes did not apply to him because he had constructed less than 10 houses in the year 1984 despite constructing more than 20 homes per year in most years. Section 501.1375 provides in pertinent part as follows: "Building Contractor" means any person who, for compensation, constructs and sells one-family or two-family residential dwelling units, except for a person who sells or constructs less than 10 units per year state wide. "Developer" means either a building contractor who offers new residential dwelling units for sale or any person who offers a new one-family or two-family dwelling unit for sale except a person who sells or constructs less than 10 units per year state wide. The Recommended Order entered December 20, 1985 found as fact that: On April 12, 1984 John and Madelyn Vlasek contracted with Pearson Construction Company for the purchase of a home in Port Charlotte, Florida. . . .The contract specified a $2,000 escrow deposit on the purchase price of $68,500. On April 12, 1984, the Vlaseks provided Pearson Construction Company with $200 in cash toward the escrow deposit. On April 13, 1984, the Vlaseks provided Pearso Construction Company with a check in the amount of $1,800 toward the escrow deposit. The contract specified the deposit was to be held in escrow pending closing of the transaction. . . .The contract referred to above was not contingent on the buyer obtaining financing. However, the deposit was not placed in escrow as specified in the contract and as required under the terms of the contract. Instead, it was used by the Respondent in purchasing lighting fixtures, carpeting, tiling and other accoutrements in colors and styles selected by John R. Vlasek. On April 23, 1984, the Vlaseks executed the loan transfer commitment. . . .After executing the loan transfer commitment, Vlasek realized that the commitment would expire prior to the June 12, 1984 closing date. Vlasek then notified Pearson Construction Company of the discrepancy between the expiration date of the loan commitment and the actual closing date. Upon being informed of the discrepancy, Jack R. Malone agreed to modify the closing date. Malone expressly modified the contract by changing the closing date from June 12 to June 1, 1984. Vlasek subsequently informed the Respondent of the change of the closing date. When informed of the change, Respondent indicated the home would be substantially completed by June 1, 1984. . . .Vlasek was repeatedly assured by Malone and other members of the construction team (not Pearson) that the home would be completed by June 2, 1984. . . .the Vlasek contract was rescinded . . .Pearson Construction Company, Inc. and William P. Pearson constructed a total of 8, possibly 9 houses during the calendar year of 1984. In most previous years he has constructed in excess of 20 houses per year. The findings and conclusions of law of the recommended order are replete with analyses of credibility of witnesses. The conclusions of law discuss such diverse legal concepts as the differences in actual versus apparent authority and ratification of an agent's/employee's misrepresentations by his employer, reasonable reliance thereon, and whether section 501.1375 should be applied annually (10 houses constructed per year) or upon a pattern of annual house construction (8-9 houses in 1984 versus more than 20 houses each previous year). The recommended order determined that DPR had failed to establish Count I (misleading, deceptive or fraudulent representations) by clear and convincing evidence and found only a "minimal" violation of Section 429.129(1)(m) had been established within Count II due to the petitioner's failure to escrow. By Final Order dated March 17, 1986, the Board adopted the findings of fact in toto. The final order rejected the conclusions of law and dismissed the administrative complaint. No evidence was introduced to indicate or otherwise explain why the Board rejected the hearing officer's conclusions of law.
The Issue Whether the petitioner is entitled to credit for the answers given to the challenged questions in the General Contractor’s examination administered October 18, 1995.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Construction Industry Licensing Board, is the state agency with jurisdiction over the examination and regulation of general contractors in the State of Florida. Sections 489.107(4) and .113(1), Florida Statutes. Mr. Simmons sat for the General Contractor examination on October 18, 1995, and received a failing grade of 68.75 percent on the business and financial administration portion of the examination. Even though he passed the other two portions of the examination, Mr. Simmons failed the examination as a result of the failing grade on this portion of the examination. Mr. Simmons subsequently filed a timely challenge to unspecified test questions on the business and financial administration portion of the examination. He presented evidence at the hearing concerning the sufficiency of his answers to questions 13 and 22 of the financial administration section of the examination and claimed that he would have presented evidence relating to questions 18 and 39 of the business administration section but could not because he was not certain that the questions included in the review materials provided to him by the respondent were the same as the questions included in the test booklet he used on October 18, 1995. Question 13 of the financial administration section of the examination is an objective, multiple choice question. The applicant is to choose the correct answer from among four choices. The correct answer to question 13 is “C," but Mr. Simmons incorrectly chose “B.” Question 22 of the financial administration section of the examination is an objective, multiple choice question. The applicant is required to choose the correct answer to the question from among four answers provided and is to choose the correct answer based only on the information included in the question. The correct answer to question 22 is “C," but Mr. Simmons incorrectly chose “A.” Mr. Simmons failed to prove that questions 18 and 39 of the business administration section of the examination included in the review manual provided to him by the respondent were not the same questions included in the test booklet he used on October 18, 1995. Because he failed to present any evidence regarding the sufficiency of his answers to these questions, he is deemed to have abandoned any substantive challenge to them. Question 13 of the business administration section of the examination is clear and unambiguous, and only one correct answer was included among the answer choices. The correct answer is found in the reference material which Mr. Simmons was permitted to use while he was taking the examination. The respondent correctly gave no credit to Mr. Simmons for his answer to this question because it was the wrong answer. Question 22 of the business administration section of the examination is clear and unambiguous, and only one correct answer was included among the answer choices. The method for determining the correct answer from the information provided in the question is contained in the reference materials Mr. Simmons was permitted to use while he was taking the examination. The respondent correctly gave no credit to Mr. Simmons for his answer to this question because it was the wrong answer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, issue a final order dismissing Alfred Simmons’s challenge to the subject examination and that the examination questions and answers provided at the hearing be sealed and not open to public inspection. DONE AND ENTERED this 3rd day of January, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1997. COPIES FURNISHED: Alfred Simmons 7755 West Kismet Street Miramar, Florida 33023 R. Beth Atchison, Assistant General Counsel Department of Business and Professional Regulation Construction Industry Licensing Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
The Issue The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent for alleged violation of Section 489.129(1)(n) and (r), Fla. Stat. (1995).
Findings Of Fact The Respondent, Robert Gary Kinney, holds General Contractor License No. CG C040517, issued by the Construction Industry Licensing Board on August 18, 1987. For almost the entire period of his licensure, the Respondent also qualified his company, Florida Construction and Development Inc. of Melbourne, to do business in Florida as a general contractor. (The Respondent was the sole owner, president and vice-president of the company.) Effective September 1, 1996, the Respondent’s license was placed on a delinquent status for non-renewal and is considered invalid. On or about May 20, 1992, the Respondent executed a personal guaranty in order for his company to obtain credit from Cox Lumber Co. Subsequently, his company purchased building materials from Cox Lumber, using credit, and incorporated the building materials into one of his company’s residential construction projects. The Respondent and his company paid only a portion of the purchase price, and January 23, 1994, Cox Lumber obtained a Second Amended Final Judgment against the Respondent under the personal guaranty in the amount of $8,829.56, together with pre-judgment interest in the amount of $1,176 and post judgment-interest until satisfied. The Respondent has made no payments on the Second Amended Final Judgment since its entry. In his request for formal administrative proceedings, the Respondent defended on the alleged grounds: (1) he had no prior knowledge of the purchase from Cox Lumber; (2) he did not request or submit a written credit application; and (3) he had no prior knowledge of the complaint or judgment. Based on the evidence, those alleged grounds are false. Based on the evidence, there is no basis to mitigate penalties recommended in the Construction Industry Licensing Board’s penalty guidelines. To the contrary, the Respondent’s cavalier attitude and false defenses are grounds to aggravate the recommended penalties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: (1) finding the Respondent guilty of violating Section 489.129(1)(r), Fla. Stat. (1995); (2) requiring that he satisfy the Second Amended Final Judgment against him; (3) imposing a $1,000 fine; and (4) revoking his license. RECOMMENDED this 28th day of March, 1997, at Tallahassee, Florida. COPIES FURNISHED: John L. Chaves Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1997. Tallahassee, Florida 32399-0792 Robert Gary Kinney 920 Mesa Grande Road Aptos, California 95003 Rodney Hurst, Executive Director Construction Industry Licensing Board 7060 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
