The Issue The issue for disposition is whether, as alleged in the Administrative Complaint, Respondent committed various violations of Chapter 489, F.S., regulating the practice of contracting, by failing to complete a roofing job which he had agreed to perform.
Findings Of Fact At all times relevant, Michael W. Ballans was licensed by the State of Florida as a certified building contractor, holding License Number CB C036542. He qualified as an individual doing business at 1107 Oregon Avenue, St. Cloud, Florida 32769. On April 6, 1988, H. Earl Fisher signed his acceptance of a written proposal by Michael Ballans for Ballans to install a new roof on Fisher's double-wide trailer at 7650 E. Irlo Bronson Memorial Highway, in St. Cloud, Florida. The price for the job was $1,575.00, for supplies and labor. Fisher made an initial payment of $1,018.00 on June 6, 1988. Materials were delivered to the job site, but Ballans never commenced work. Fisher contacted Ballans four or five times to try to get him to do the job or to get someone else to do it. Ballans never returned the funds and at one point told Fisher that he could not do the work because he lost his insurance. Fisher did not agree to do the work himself and told Ballans he wanted the money back and the materials removed from his property. Stanton Alexander was qualified as an expert in construction industry contracting, including roofing. He has practiced in the profession for approximately thirty years. He served two terms on the construction industry licensing board, including a term as chairman. He has testified in the past as an expert in construction industry practices. A contractor terminates his responsibility under a contract after payment and final inspection and a certificate of occupancy has been issued. Until then, he is responsible for completion of the job. Proper procedure when a contractor becomes unable, to complete a job is to refund the money and remove the materials or to get permission from the building department and owner to bring in another contractor to complete the work. Michael Ballans did neither, and simply abandoned the job. This deviation from the standards of construction industry practice constitutes incompetency or misconduct.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered finding Michael W. Ballans guilty of violations alleged in Counts I, II and IV of the Administrative Complaint, and imposing a fine of $500.00. DONE AND RECOMMENDED this 16th day of April, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 April, 1990. COPIES FURNISHED: Jack L. McRay, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Michael W. Ballans 2314 Knob Hill Drive, Apt. #12 Okemos, Michigan 48864 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director DPR-Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202
The Issue The ultimate issue is whether Florida Power Corporation (FPC) engaged in an unlawful employment practice by discriminating against James A. Brand on account of handicap in violation of Section 760.10, Florida Statutes (1989)
Findings Of Fact Florida Power Corporation is an electrical utility engaged in the generation, transmission, and distribution of electricity. FPC operates and maintains electrical generating plants throughout its service area, including Crystal River, Florida, where it operates two fossil generating plants, Crystal River South and Crystal River North, and a nuclear generating plant, Crystal River 3. The maintenance of the plants' equipment is performed by plant maintenance employees and by employees assigned from the System Maintenance Crew (SMC). Both regular and temporary employees work as members of the SMC in the job classifications of mechanic, certified welder mechanic, and electrician. Petitioner, James Brand, was employed by FPC on nine separate occasions during the years 1985 through 1988 as a temporary employee in the job classification of mechanic and certified welder mechanic on FPC's SMC. Temporary employees, such as Mr. Brand, are hired by FPC for the SMC for time periods of less than six months to perform overhaul and maintenance work on boilers, turbines, generators, pumps, fans, and other plant equipment during a unit or plant outage. Temporary employees are laid off and their employment is terminated as the outage work is completed. Mr. Brand had a preemployment physical examination before being initially hired as a temporary employee on the SMC in 1985. Thereafter, he had preemployment physical examinations on two occasions prior to reemployment by FPC. In June 1988, Mr. Brand was notified by letter from his attorney, Alwyn Luckey, that he has an asbestos-related lung disorder known as asbestosis. In June 1988, Mr. Brand received a clinical evaluation from Dr. Lewis J. Rubin, Head, Division of Pulmonary Medicine, University of Maryland School of Medicine, that he has pulmonary asbestosis. In approximately January or February 1989, Kathleen Moyer, a human resources representative in FPC's Crystal River office, contacted Mr. Brand regarding reemployment as a mechanic or certified welder mechanic on the SMC to work during a unit or plant outage. Mr. Brand went to Ms. Moyer's office to update his records and, at that time, provided her with Dr. Rubin's clinical evaluation reflecting that he has pulmonary asbestosis and with a copy of Mr. Luckey's June 21, 1988, letter. Ms. Moyer provided Dr. Rubin's report to Dr. Alex Sanchez, FPC's regional medical director. Mr. Brand was thereafter scheduled for a physical examination with Dr. Sanchez in February 1989. Mr. Brand also provided Dr. Sanchez with copies of Dr. Rubin's clinical evaluation and Mr. Luckey's June 21, 1988, letter. Dr. Sanchez asked Mr. Brand to get a second medical opinion. On March 4, 1989, Mr. Brand went to a physician, Dr. Nikhil Shah, who conducted a pulmonary examination and a pulmonary function or spirometry test. The results were given to Dr. Sanchez. Dr. Sanchez thereafter received a letter dated March 16, 1989, from Dr. Lewis Rubin, who had initially diagnosed Mr. Brand's medical condition as pulmonary asbestosis. Dr. Rubin stated in his March 16 letter that he had reviewed the pulmonary function test performed by Dr. Shah on March 4, and that Mr. Brand's asbestosis "should in no way impair his ability to do his job as long as he is not being exposed to noxious fumes or other environmental irritants." Dr. Ronald S. Kline, Director of Health Services for FPC, thereafter reviewed Mr. Brand's medical records, including Dr. Rubin's clinical evaluation diagnosing Mr. Brand as having pulmonary asbestosis and Dr. Rubin's March 16 letter. As Director of Health Services for FPC, Dr. Kline is responsible for the overall function of the medical department, which includes responsibility for determining whether a person has a physical or mental impairment which might limit his/her activities as they relate to his/her employment. Dr. Rubin's clinical evaluation states that Mr. Brand is at risk for the progression of pulmonary asbestosis even-in the absence of further exposure to asbestos. Dr. Kline did not request that Mr. Brand undergo any additional tests to determine if he suffers from asbestosis nor did Dr. Kline make an independent diagnosis that Mr. Brand has asbestosis. Dr. Kline accepted Dr. Rubin's evaluation and diagnosis of Mr. Brand. Dr. Kline had no reason to disbelieve the diagnosis of Mr. Brand's own physician, especially when the information regarding his medical condition was presented by Mr. Brand to FPC. On April 5, 1989, Dr. Kline issued a guideline to the human resources department placing the following restriction on Mr. Brand's employment activities: "No exposure to irritating gases or fumes, or any other environmental irritant." Dr. Kline based his recommendation on Dr. Rubin's evaluation and assessment. Moreover, Dr. Kline agreed, on the basis of his own medical experience, training, and education, that Dr. Rubin's recommendation of restrictions on Mr. Brand's activities was entirely reasonable. In Dr. Kline's medical opinion, Mr. Brand's continued employment in a position where he would be exposed to noxious fumes, gases, or other environmental irritants would pose a substantial risk of injury or harm to Mr. Brand's health. Dr. Kline does not and did not make decisions or recommendations regarding the hiring or reemployment of employment applicants. At no time did Dr. Rline recommend or otherwise indicate that Mr. Brand should not be reemployed by FPC. Rather, it was Dr. Kline's recommendation that he be employed in jobs in which he would not be exposed to noxious fumes, gases, or environmenta1 irritants. After receiving Dr. Kline's report, a human resources representative contacted Carey Hamilton, senior mechanical supervisor, and asked if he could employ a person in the position of mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. As senior mechanical supervisor, Mr. Hamilton is responsible for hiring and supervising the" regular and temporary mechanics and certified welder mechanics on the SMC. Mr. Hamilton has working knowledge of the environment inside the power plants due to his experience as an employee and supervisor on the SMC. He has been employed by FPC for over fifteen years in the job classifications of temporary mechanic, lab technician, certified welder mechanic, first line supervisor, and senior mechanical supervisor. He has worked as a certified welder mechanic, first line supervisor, and senior mechanical supervisor in all of FPC's power plants. Moreover, approximately ten years of Mr. Hamilton's experience has involved working with the SMC and supervising regular and temporary employees on the SMC, including during unit or plant outages. Based on his experience and firsthand knowledge of the work environment in the plants, Mr. Hamilton determined that he could not employ a person to work as a mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. At the time Mr. Hamilton responded to the human resources employment inquiry, he was unaware of the identity of the individual human resources was inquiring about or that this person has asbestosis. All employees on the SMC are initially hired into the mechanic classification. However, the temporary employees who are hired to work during a plant outage are usually upgraded to the certified welder mechanic position after they pass certain tests. The mechanics and certified welder mechanics working in the plant during an outage are continuously exposed to noxious fumes, gases, and other environmental irritants. Pulverized coal and fly ash, both of which have the consistency of face powder, exist in abundance throughout the plant in areas where the mechanics and certified welder mechanics are assigned to work. They are also exposed to other major irritants including sulfur dioxide gas, flue gases, smoke and dust created by tools, and irritants created by sandblasting and grinding. Mr. Brand was hired as a temporary on the SMC because of his welding and pipe fitting skills. He was qualified and certified to make safety-related pressure welds. FPC expends a significant amount of money in testing and certifying persons employed on the SMC so they can be used as welders. Prior to each period of his employment on the SMC, Mr. Brand was required to take welding certification tests in order to qualify as a certified welder. He always passed the certification tests and therefore was qualified to work as a certified welder mechanic. As a certified welder mechanic, Mr. Brand would work primarily in and around the boiler and boiler cavity. The work that is performed inside the boiler cavity by certified welder mechanics involves inspection, repair, and replacement of boiler tubes, replacement of burner fronts and defusers, and refractory repair. The certified welder mechanics clean the boiler tubes with a grinder prior to inspection. Thereafter, their work typically consists of repairing boiler tube leaks with a weld and replacing sections of the boiler tubes. The performance of this work involves grinding, burning, cutting, and welding, all of which produces fumes, gases, and other airborne irritants. The burner replacement and refractory repair work also exposes the certified welder mechanics to similar fumes, gases ~ and irritants. In addition to the boiler area, the certified welder mechanics perform work on the precipitators. This work involves burning, welding, and cleaning. The bottom ash hopper and the pulverizers that are used to crush coal are cleaned and repaired by certified welder mechanics during an outage. This work involves cutting, burning, grinding, and welding which produces noxious fumes and gases. Working on the water front and in the turbine areas during an outage exposes these SMC employees to fumes and dust particles created by sandblasting. During an outage, the SMC employees will be working on one unit that is out of operation; however, they are working next to a unit that is in operation. The unit that is in operation produces gases, fumes, and airborne irritants. The fact that Mr. Brand might work as a mechanic instead of a certified welder mechanic would not insulate him from exposure to noxious fumes, gases, and other environmental irritants. The duties of a SMC mechanic include sandblasting and grinding dirty or rusty metal, burning with a cutting torch, welding non-safety related welds, and' wire brushing. These activities are performed on a daily basis by mechanics. The sandblasting or grinding work is done with an abrasive disk that creates airborne particulates that contaminate the air. The burning process is used in making repairs such as in the steel ducts that transport air and gases to and from the boilers. Sulfur-based deposits collect in these ducts and when a torch is used in that area, the burning creates sulfur dioxide gas and other fumes. In addition, oxygen blasts are used in the burning process to increase the heat and blow metal out of the weld. This causes fly ash, dust, and other irritants to become airborne. The welding that is performed by mechanics also produces fumes and gases. All of the tools used by the SMC in the power plant are air-driven tools. The air discharged by these tools stirs up the dust, fly ash, gases, and other irritants in the workplace environment. During the time periods that a mechanic is not directly engaged in grinding, burning, or welding, he is working in close proximity to other employees who are performing those tasks, and thus, is exposed to the noxious gases, fumes, and irritants. Mr. Hamilton determined that he could not employ a certified welder mechanic on the SMC with the following restriction: "No exposure to irritating gases or fumes, or any other environmental irritant." He did not know that Mr. Brand was the proposed employee or that Mr. Brand has asbestosis. Mr. Hamilton knew that employing an individual to work as a mechanic or certified welder mechanic would expose that individual to gases, fumes, and other environmental irritants. The only positions supervised by Mr. Hamilton on the SMC are mechanic, certified welder mechanic, and tool room attendant. The tool room is housed in a large trailer parked outside of the plant. The tool room attendant's duties include issuing and receiving tools and repairing tools. These duties are performed in the tool room trailer. Because of his work location, the tool room attendant is not exposed to fumes, gases, and environmental irritants in the same way as the mechanics and certified welder mechanics. Mr. Hamilton later determined that Mr. Brand could be employed in the tool room consistent with the restrictions issued by Dr. Kline. Mr. Hamilton discussed with a human resources representative the possibility of employing Mr. Brand in the tool room. Mr. Hamilton had no objection to employing Mr. Brand in the tool room. However, there were no vacancies in that position and there have been no vacancies since that time. During 1990, Mr. Brand worked in Fluor Constructors Corporation, at Crystal River 3. Fluor Constructors is an independent contractor that is employed by FPC to perform repair and maintenance work. Mr. Brand received the referral to this job site through the Pinellas Park Local of the Pipefitters Union. While working for Fluor at Crystal River 3, he was supervised by Fluor's supervisors and not by FPC's supervisors. Mr. Brand is not seeking back pay for the period from February 23, 1991, through June 6, 1991. He was employed by a number of different employers during the period from January 1989 through May 1991. Such employers include Fluor Contractors, Inc., Teco Electric, Nisco, and a nuclear power plant in Mississippi. Mr. Brand would not be entitled to recover back pay or other monetary relief for the periods while working for other employers insofar as such interim employment periods coincided with SMC outage work periods. The hourly rate as well as other benefits of employment for temporary employees are set forth in the labor agreement between FPC and the International Brotherhood of Electrical Workers. As of December 5, 1988, the hourly wage rate for a mechanic was $16.51 per hour and for a certified welder mechanic was $18.72 per hour.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order denying the Petition for Relief. DONE and ENTERED this 11th day of July, 1991, in Tallahassee, Florida. DIANE R. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James A. Brand 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 1(2); 3(3&4); 475 (5-7); 6(63); 7(8); and 8-16(10-17). 2. Proposed findings of fact 17-19, 21-35, 50-54, 65-70, 76, 77, 84, 85, 91, and 92 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 36-49, 55-64, 82, 83 and 86- 90 are irrelevant. Proposed finding of fact 20 is unnecessary. Proposed findings of fact ,1-75 and 78-81 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Florida Power Corporation 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-63(1-62). COPIES FURNISHED: John Barry Relly II Attorney at Law Ray, Kievit & Kelly 15 West Main Street Pensacola, FL 32501 J. Lewis Sapp Sharon P. Morgan Attorneys at Law 800 Peachtree-Cain Tower 229 Peachtree Street, N.E. Atlanta, GA 30303 Ronald M. McElrath, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 Johp Knox Road Tallahassee, FL 32399-1570
Findings Of Fact At all times material to this proceeding, the Respondent, Donald F. Royal, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0031831. During the times of the alleged violations, the Respondent was the sole qualifying agent for J & J Construction Company (the company.) The principals of the company were the Respondent and a man named James Jimenez. Both men sold jobs for the company and were responsible for overseeing some of the work of the company. The Respondent pulled permits for, and was primarily responsible for, the roofing work contracted by the company. But sometimes, when the company had more than one job going at the same time, the Respondent would be primarily responsible for overseeing one, and Jimenez would be primarily responsible for overseeing the other. The Respondent thought that Jimenez held a license of some kind that enabled him to do some kinds of minor renovation construction. The Respondent restricted his work to roofing and did not mind Jimenez doing some renovation work on the side, separate from the business of the company. But the Respondent understood that Jimenez' "side deals" would be done separately under Jimenez' own license and would not be part of the business of the company. On or about August 14, 1986, Jimenez entered into a contract on behalf of the company to build an addition, remodel and reroof the existing structure and roof the addition of the residence of Ernest and Mercedes Riccio located at 3117 West Henry Avenue, Tampa, Florida. The contract price was $18,999. Jimenez telephoned the Respondent about the job but only told him about the part of the contract that called for the existing roof to be torn off and reroofed. He told the Respondent that the contract price for the job was $3,800. The Respondent pulled a permit for what he thought was the job and started and finished what he thought was the work to be done. The Respondent personally was compensated approximately $700-$800 for his part in the reroofing job. When the Respondent was finished, Jimenez continued with the rest of the contract, which was to include roofing the addition, without telling the Respondent about it. Jimenez did not get very far before a Tampa building inspector happened past and, seeing unfamiliar work in process, inspected the job site. He discovered that the building permit displayed at the site had been altered to expand the work purportedly permitted to include building, in addition to the roofing work for which the Respondent had obtained a permit. Someone other than the Respondent (probably Jimenez although he denied it) altered the permit. The Respondent knew nothing about the contract (other than the reroofing that he did), the alteration of the permit, or the work Jimenez was doing after he left the site. When he discovered the permit violations, the building inspector "red- tagged" the entire job, and work stopped. That was only the beginning of the Riccios' problems. Further investigation revealed that the job would require not only a valid permit but also zoning variances and utility easements. Although the contract had called for the company to obtain all necessary permits, Jimenez and the Riccios agreed that the Riccios would apply for whatever else was necessary in their own names and that Jimenez would assist them. By the time work stopped, the Riccios already had paid the company $12,666 of the total contract price. Nonetheless, when Jimenez' minimal assistance did not resolve the Riccios' problems quickly, Jimenez decided that he already had put too much into the job, and he began to lose interest and make himself scarce. The Riccios finally got their necessary permits on January 26, 1987. They then approached Jimenez about the work to be done under the contract (and the matter of the remaining $6,333 draw). The Riccios and Jimenez agreed that the Riccios would provide the materials and supplies necessary to complete the work and the company would provide the labor. Despite these alternate arrangements, the company did not promptly finish the job. Eventually, the Riccios gave up on Jimenez and in April or May, 1987, began to deal directly with the company's former job superintendent, a man named Ray. To improve their chances of getting the job done (and reduce some of their extra expenses), the Riccios agreed to allow Ray to live in the house free of charge while they were doing the work. The job still did not get finished. Eventually, Mrs. Riccio and some of her relatives finished the job themselves. Even so, the Riccios wound up spending about $20,000, in addition to the $12,666 they had paid the company, to complete the job which the company had contracted to do for $18,999, total. The Respondent was not aware of any of Jimenez' dealings with the Riccios after the Respondent completed his reroofing work. The Respondent assumed that Jimenez had called for a final inspection and that the job had been completed satisfactorily. But in approximately February or March, 1987, the Respondent was contacted by a DPR investigator in connection with the Riccios' complaint against the company. He learned at about that time about Jimenez' other dealings with the Riccios. He also learned that the roof over the addition that had been built had failed inspection. The Respondent eventually corrected the deficiencies, and the roof passed final inspection on August 19, 1987. The Respondent attempts to excuse himself of any wrongdoing, saying that he had a right to delegate the supervision of jobs such as the Riccio job to Jimenez and that he himself was victimized by Jimenez, along with the Riccios. Respondent nonetheless negotiated with Jimenez through the end of the year 1987 in an attempt to come to an agreement to continue to do business together, but the negotiations finally failed. The Respondent was disciplined by the Construction Industry Licensing Board on January 7, 1988, for offenses which occurred during the same time frame in which the Riccio job took place.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Construction Industry Licensing Board enter a final order finding the Respondent, Donald F. Royal, guilty of violating Section 489.129(1)(j) and (m), Florida Statutes (1987), and imposing on him an administrative fine in the amount of $1,000. RECOMMENDED this 20th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1988. COPIES FURNISHED: Mr. Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Donald F. Royal, pro se 8509 North 16 Street Tampa, Florida 33604 Bruce D. Lamb General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent, Department of Financial Services, Division of Workers' Compensation (Department or Respondent), should pay Petitioners’, Stephen Ogles, LLC, or RL Ogles Roofing, LLC (Petitioners), attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ for initiating Division of Administrative Hearings (DOAH) Case Nos. 13-2448 and 13-2517.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and officers, pursuant to section 440.107, Florida Statutes. Petitioners are in the business of roofing, within the construction industry, as defined by subsection 440.02(8), and are Florida employers over whom Respondent has jurisdiction to enforce the payment of workers' compensation premiums for the benefit of Petitioners' employees. Petitioners are the sole members of their respective limited liability companies, each with one employee. An officer of a corporation may elect to be exempt from chapter 440, Workers' Compensation, by filing a notice of election with the Respondent. § 440.02(15)(b)1., Fla. Stat. An officer of a corporation who elects to be exempt from Florida's Workers' Compensation Law is not an employee. § 440.02 (15)(b)3., Fla. Stat. Jonas Hall is employed as an investigator for the Division of Workers’ Compensation. He has been conducting workers’ compensation compliance investigations for approximately five years, and during that time has been involved in between 2,000 and 3,000 investigations. On June 12, 2013, Respondent issued a Stop-Work Order and Order of Penalty Assessment to Stephen Ogles, LLC, and RL Ogles Roofing, LLC, and a Stop Work Order For Specific Worksite Only to Ogles Construction and Roofing, LLC. Findings of Fact 8 through 18 below set forth the specific facts and circumstances known to Respondent at the time the SWO was issued. These facts are based upon the testimony at hearing of Jonas Hall, which is found credible, as well as documentary evidence offered by Respondent, which is corroborative of Mr. Hall’s testimony. Mr. Hall began a random site investigation on June 12, 2013, after he noticed construction work about to be performed at a single-family dwelling located in Live Oak, Florida. Upon investigation, four men were found to be installing roofing at a private residence. One of those workers, Robert Ogles, advised Respondent's investigator that he was working with his three sons, Stephen, Matt, and Robert, Jr. Investigator Hall first spoke to the elder Robert Ogles who advised Investigator Hall that he was the general contractor on the job and that his sons were working as subcontractors. At no time during the interview did Robert Ogles state that his sons were employees of his company, Ogles Construction and Roofing, LLC. Investigator Hall next spoke to Stephen Ogles who stated that he owned his own business and had a valid workers’ compensation exemption. Investigator Hall then spoke to the younger Robert Ogles who also advised him that he owned his own business and had a valid workers’ compensation exemption. Finally, Investigator Hall spoke to the third son, Matt Ogles, who also stated that he owned his own business and had a valid workers’ compensation exemption. At no time during the interview of June 12, 2013, did any of the three sons state that they were employees of their father’s business. After interviewing the four Ogles, Investigator Hall left the jobsite in order to gain access to a wireless internet connection for his computer. Once he obtained a connection, Investigator Hall accessed the Division of Corporations website to look up the correct names of the businesses owned by the four Ogles. With respect to the two Petitioners, the website revealed that Stephen Ogles was the sole member of Stephen Ogles, LLC, and that Robert Ogles, Jr., was the sole member of RL Ogles Roofing, LLC. Investigator Hall then accessed the Coverage and Compliance Automated System (CCAS) to ascertain the status of workers compensation coverage for the four individuals. CCAS revealed that while both Petitioners had at one time held exemptions, both exemptions had expired at the time of Investigator Hall’s site visit on June 12, 2013. Based upon this information, Investigator Hall reasonably concluded that both Petitioners were not in compliance with Florida workers’ compensation coverage requirements. With respect to the third son, Matt, Mr. Hall’s investigation revealed that his company, Matt Ogles, LLC, held a valid exemption, and was therefore compliant with the workers compensation coverage requirements. As such, Investigator Hall did not issue an SWO to Matt Ogles, LLC. After accessing information about Petitioners’ status on his computer, Investigator Hall returned to the jobsite. Upon his return, he observed all four of the Ogles working at the jobsite, with two actively working on the roof of the home. Investigator Hall then called those on the roof down, and served the SWOs on Petitioners. The facts uncovered in Investigator Hall's investigation on June 12, 2013, provided the Department with a reasonable basis to issue the SWOs to Petitioners. On June 17, 2013, Petitioners timely filed a Request for Hearing alleging the affirmative defense that Petitioners had valid workers' compensation exemptions. The Request for Hearing filed on behalf of Stephen Ogles, LLC, specifically stated: The Respondent disputes the SWO, to wit: The Owner’s exemption was not expired. And although worded somewhat differently, the Request for Hearing filed on behalf of RL Ogles Roofing, LLC, stated: The Respondent disputes the SWO, to wit: The WC Exemption was current. The Requests for Hearing filed by Petitioners on June 17, 2013, are consistent with the representations made to Investigator Hall on June 12, 2013, to wit, both Petitioners were subcontractors on the job, and held valid exemptions. On September 10, 2013, Petitioners filed an Amended Request for Hearing disputing the penalty assessment, and contending that Petitioners were employees of Ogles Construction and Roofing, LLC. The Amended Request for Hearing stated in pertinent part: The Respondents disputes the SWO, to wit: Ogles Construction and Roofing LLC disputes the penalty assessment. RL Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. Stephen Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. On October 8, 2013, Respondent issued an Order Releasing Stop-Work Order (Revocation) to Stephen Ogles, LLC, and RL Ogles Roofing, LLC. Two witnesses testified as to the reasonableness of the attorney’s fees being sought by Petitioners. Petitioners’ witness on the subject, John Middleton, is a Jacksonville attorney with eight years’ experience in handling workers’ compensation defense matters. Mr. Middleton opined that the $5,000 in fees being claimed by each Petitioner was not excessive, particularly in view of the successful outcomes for Petitioners in the underlying cases. Respondent’s witness, Ralph Paul Douglas, Jr., is a Tallahassee attorney who has concentrated his practice on workers’ compensation matters for twenty years. Mr. Douglas testified that Petitioners’ attorney in the underlying cases claimed 13.3 hours per case for legal services. However, according to Mr. Douglas, at least 1.3 hours of the total hours should be deducted as not awardable due to those hours relating to the preparation of a motion in response to an order to compel. Such fees “cannot be related to any delay, any confusion caused by that party claiming the fees, . . . obfuscation, . . . anything that does not move the case along in the docket.” It was Mr. Douglas’s opinion that 12 hours of legal services is a reasonable number for the underlying cases. However, since the same itemized list of services was submitted for both cases, Mr. Douglas concluded that the second itemized list was duplicative and mostly amounted to only ministerial work. The second itemized list should be, therefore, apportioned. Mr. Douglas testified that a $10,000 fee for the work done on the underlying cases would not be appropriate or reasonable based on the pleadings, the deposition testimony of the attorney performing the work, and the itemization of services. Rather, a reasonable fee would be 12 hours at $200 per hour for one case ($2,400) and $1,200 on the second case. Thus, the total fees that should be awardable for both cases would be $3,600. While the testimony of both Mr. Middleton and Mr. Douglas is credible, the undersigned gives greater weight to the testimony of Mr. Douglas due to his greater experience in the field of workers’ compensation law, and his more detailed analysis of the legal services performed in the underlying cases. The unrebutted testimony presented by Stephen Ogles and Robert Ogles, Jr., established that their respective LLC’s employ fewer than 25 full-time employees and have a net worth of less than $2 million each.
The Issue The issues framed by the Stipulated Issues, Facts and Exhibits are whether the license of David L. Norris as a certified general contractor should be disciplined for violation of: Section 489.129(1)(e), Florida Statutes (1983), by aiding an unlicensed person to evade the requirements of Chapter 489; Section 489.129(1)(f), Florida Statutes (1983), by knowingly conspiring with an unlicensed person to use Norris' certificate with the intent to evade the requirements of Chapter 489; Section 489.129(1)(j), Florida Statutes (1983), through the violation of Section 489.119, Florida Statutes (1983), by failing to qualify a firm through which Respondent was acting; Section 489.129(1)(g), Florida Statutes (1983), by acting in a name not on his license. At the final hearing, the Department amended the Administrative Complaint to dismiss the violations of Sections 489.129(1)(k) (abandoning a contracting job) and (m) (gross negligence or malpractice in contracting). The Department presented the two witnesses and the Respondent presented one witness. Twelve exhibits for the Department were received into evidence, and Mr. Norris offered one exhibit. The parties also stipulated to certain facts. (See Stipulated Issues, Facts and Exhibits filed May 15, 1986, Tr. 4-5)... /1
Findings Of Fact At all times material, Respondent, David L. Norris, was a certified general contractor, having been issued license numbers CG C011081 and CG CA11081, by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (PX 2; Stp. F. #1, Administrative Complaint paragraph 2) At all times material, Mitch Kobylinski (Kobylinski) was unlicensed, and KMK Remodeling and Repair (KMK) had no qualifying agent for the purpose of engaging in contracting under Section 489.119, Florida Statutes (1983). At times Kobylinski has done business as KMK. (PX 1; Stp. F. #2; Tr. 18-21) At no time did the name Kobylinski or KMK appear on the license issued to Norris by the Construction Industry Licensing Board, nor did Norris qualify a business by that name. (Stp. F. #1, Administrative Complaint paragraph 9) Norris knew Kobylinski was not licensed to engage in contracting. (Stp. F. #1, Administrative Complaint paragraph 5) Kobylinski had worked for Norris on prior jobs, including working for Norris in the capacity as overseer on a large room addition. Norris had paid Kobylinski by the hour, by the day or by the type of work Kobylinski did. On one other job, Norris and Kobylinski shared the job in that Kobylinski was paid by the day, however, at the end both Respondent and Kobylinski split the profit. (Tr. 21,22) Kobylinski, not Norris, was initially contacted by a leasing agent to improve a structure for Marianne Tomlinson (Tomlinson) at 21073 Jog Road, Suite 21, Boca Raton, to become Tootsie's, a nail salon. Kobylinski indicated to the leasing agent and Ms. Tomlinson that he would have to perform the work with a general contractor. (Stp. F. #3; Tr. 24) Kobylinski presented a proposal on KMK's letterhead, dated August 17, 1984, to Tomlinson for the work to be done. (PX 3; Tr. 16, 18) Norris also submitted a proposal, dated August 15, 1984, to Tomlinson. The evidence does not show what letterhead was used by Norris, because the exhibit is a carbon copy. (RX 1) The proposed cost of the work from Kobylinski was $23,593.75 and from Norris was $23,600. Both proposals made separate provisions for formica work at additional prices of $10,600 and $10,500 respectively. (Stp. F. #4; PX 3; RX 1) Only Kobylinski's proposal was signed by Ms. Tomlinson. (PX 3; Tr. 39) Norris and Kobylinski agreed that Norris would act as the overseer of the job and that, as compensation, Norris initially was to receive $1,000.00 to begin the job (Tr. 26) and further monies depending upon time Norris expended on the job (Tr. 22-23, 28-29). They also agreed that Kobylinski was to deal exclusively with Tomlinson and be responsible for all monies on the job and paying subcontractors. (Tr. 26, 43) No agreement was signed between Norris and Tomlinson providing that Norris would be the contractor for the job. (Tr. 38-39) Norris applied for and was issued, on September 18, 1984, the building permit for the Tomlinson job. (PX 4,5; Stp. F. #1, Administrative Complaint paragraph 6; Tr. 39) Norris contacted the electrician, at the initial stage of the job, for the electrical work. (Tr. 56) A certificate of occupancy was issued for the job. (Stp. F. #6; Tr. 46) Tomlinson made all payments for the construction work by checks payable to Kobylinski, drawn on Tomlinson's business account for Tootsie's. (PX 7; Tr. 30) Near the end of the job, Tomlinson gave Kobylinski a check, dated December, 1984, for $4,000.00. There were not sufficient funds in the account for Kobylinski to cash the check. Kobylinski returned to Tomlinson with the check, and Tomlinson issued him a replacement check for $2,000.00. She requested the return of the $4,000.00 check to her, but Kobylinski had not brought that check with him. At this point in time, the working relationship between Kobylinski and Tomlinson broke down. (PX 7; Tr. 31,32) Tomlinson submitted her punch list, dated December 17, 1984, to Norris. On it she identified him as the contractor for her job and stated she wanted to make the final payment to him. (PX 6) On January 20, 1985, due to problems with the punch list and remaining payment, Tomlinson and Norris met. As a result of that meeting, they reached an agreement dated January 20, 1985, as to what remained to be paid, viz., $4,113.75, and what work remained to be done. The August 17th agreement between Kobylinski and Tomlinson was referenced in the agreement of January 20, 1985. (PX 8; Tr. 45) By January 20, 1985, Kobylinski would have received all the monies for the cost of the work, according to the August 17th agreement, if the $4,113.75 were paid by Tomlinson. (Stp. F. #5) On January 21, 1985, Norris filed a claim of lien against the Tomlinson job. The lien indicated that the total value of the work was $23,593.75 (which was the cost of construction according to the contract with Kobylinski) and that the amount unpaid was $4,113.75. Norris filed the lien because, after signing the agreement of January 20, 1985, he and Tomlinson had further disagreements. (PX 9; Tr, 46) In a letter to Norris, dated April 23, 1985, in an attempt to get Respondent to release his lien, Tomlinson indicated that she had contracted with Kobylinski, not Norris, to do the work for her. (PX 11) As compared to the compensation received by Norris, Kobylinski has received over one-half the money from the Tomlinson job. (Tr. 28)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty as charged in the Administrative Complaint, as amended at the final hearing, and that an administrative fine of $1,000.00 be imposed. DONE AND ORDERED this 9th day of October 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986.
The Issue Whether the Respondent's license as a registered building contractor should be disciplined for violating Section 489.129(1)(m), Florida Statutes?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida as a registered building contractor. The Respondent held license number RB 0047309. In June of 1983, the Respondent, doing business as Gamble's Construction Company, contracted with James B. Sampson, Jr., to construct an open steel shelter on Mr. Sampson's property, the Bull Frog Dairy Farm. The contract called for the payment of $42,052.00 for the construction of the shelter. The shelter measures 108 feet by 150 feet. The shelter consists generally of a tin roof sitting on columns. The sides of the shelter are open. The shelter was to be, and is, used as a feed barn for dairy cows. The Respondent purchased the shelter to be constructed on Mr. Sampson's property from Steel Concepts, a steel manufacturing company in Sparks, Georgia. The Respondent had purchased steel structures from Steel Concepts for several years prior to 1983. The Respondent had not, however, purchased or erected a steel structure of the size and design of the shelter to be erected on Mr. Sampson's property. The steel structure purchased by the Respondent for erection on Mr. Sampson's property was designed by Donald Gibbs, then President of Steel Concepts. Mr. Gibbs was not licensed or trained as an engineer, an architect or a contractor. Mr. Gibbs' design of the steel structure purchased by the Respondent for erection on Mr. Sampson's property was never reviewed by a licensed engineer. The Respondent made no effort to ensure that the design of the steel structure purchased for erection on Mr. Sampson's property had been approved by a licensed engineer. Construction of the shelter began in August, 1983, and was completed in September, 1983. The Respondent first designed and constructed the foundation for the shelter. The foundation consisted of a series of concrete-block piers. The concrete-block piers rested on concrete footers (concrete under the ground). The shelter included twenty-eight vertical columns which were each to be attached to one of the concrete block piers by four nuts and anchor bolts. The anchor bolts were embedded into the piers. The Respondent supervised and assisted several employees in constructing the foundation and erecting the steel structure. The Respondent used all the materials furnished to him by Steel Concepts for the shelter. Although cross bracing was provided for, and attached to, the roof of the shelter, no cross-bracing was provided for use in bracing the columns. Holes for the attachment of cross bracing of the vertical columns were provided in the columns. The Respondent should have known that cross-bracing of the vertical columns was necessary. Therefore, the Respondent should have questioned Steel Concepts about the lack of such bracing or the Respondent should have added cross-bracing on the columns. On January 22, 1987, a wind and rain storm struck the Bull Frog Dairy Farm. The next morning, Mr. Sampson discovered that the shelter erected by the Respondent was listing to the east. The structure was approximately twelve to twenty degrees off vertical. Mr. Sampson arranged for emergency repairs to prevent the shelter from collapsing. The Respondent did not make the emergency repairs because it was Friday and the Respondent had released his employees. The Respondent personally helped, however, with the emergency repairs. The damage caused to the shelter by the storm was caused by the lack of cross-bracing on the columns and the failure to properly tighten approximately one-half of the nuts to the anchor bolts connecting the columns to the piers. The Respondent should have insured that the nuts were properly tightened on the anchor bolts holding the columns to the piers. The Respondent's failure to properly supervise the tightening of the anchor bolts constituted a failure to meet acceptable industry standards of supervision. The Respondent's erection of the shelter was not within acceptable industry standards. The Respondent's failure to insure that cross-bracing was provided or to ask Steel Concepts why no bracing was provided, and the Respondent's failure to insure that all the nuts were properly tightened constituted incompetency. Although there had been erosion of the soil around the shelter, the erosion did not contribute to the damage to the shelter. The possibility of erosion should have been taken into account by the Respondent before constructing the footers and piers. This is the first complaint ever filed against the Respondent. The Respondent attempted to resolve the matter with Mr. Sampson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that the Respondent violated Section 489.129(1)(m), Florida Statutes. It is further RECOMMENDED that the Department impose a fine of $1,500.00 on the Respondent payable within thirty (30) days from the date of the final order in this case. DONE and ENTERED this 5th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5391 The parties have submitted proposed findings of fact. Petitioner's Motion to Strike Respondent's Proposed Recommended Order has been granted and no consideration has been given to the Respondent's proposed recommended order. It has been noted below which of the Department's proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those findings of fact proposed by the Department which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2 and 4. 3 11. 4 5-8. 5 10, 12-13 and 15-16. 6 17-19. 7-10 See 16, 20 and 22-23. These proposed findings of fact are pertinent in determining the weight to be given to the testimony of various witnesses or recite opinions of those witnesses. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, Florida 32060 Fred Seely Executive Director Post Office Box Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
