Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Transportation, (Department), was the state agency regulating the utilization of the state highway system by commercial vehicles. The Petitioner, Consolidated Freightways, (Consolidated), is a long haul interstate carrier operating in forty-eight states, including Florida. It has a freight terminal in Brooksville, Florida, a city approximately 11 miles west of I-75 which it has used since December 1, 1986. On October 24, 1990, Andrew J. Gay, Jr., Petitioner's Southern Area Safety Supervisor, requested tandem trailer access to its terminal facilities in Brooksville, via a route over State Road 50 from its intersection with I-75 to the old Dade City highway, then over that road to the terminal. The application indicated the proposed route would be used for on the average of 10 round trips per 7 day week, during the approximate hours of from 2:00 AM to Noon. Upon receipt at the Department, the file was forwarded to the District Operating Engineer in the Department's District VII office in Tampa, that office responsible for supervision of operations in the pertinent area, where it was given to Kevin Dunn, an assistant civil engineer, for evaluation. This was the first evaluation such as this that Mr. Dunn had made. In accomplishing the evaluation, he relied upon a department directive, TOPIC NO. 750-010-050-C; effective November 21, 1990, good to May 21, 1991, entitled, EVALUATION OF PROPOSED TANDEM TRAILER TRUCK ROUTES, in which, at PROCEDURE; (4)(B) 1 & 2, rejection criteria, including vehicular safety and highway safety considerations, are listed. Section (4) of the Directive deals with Terminal Access Route Evaluation Standards, and provides that when an operator of a terminal facility located more than 5 miles from the tandem trailer truck highway network submits a request for access routing, it shall be for the shortest route available, and shall be evaluated utilizing the rejection criteria outlined which indicate that a request may be rejected when one of the criteria for rejection are met, but shall be rejected when two or more are met. Mr. Dunn considered that one of the vehicular safety considerations was met as was one of the highway safety considerations. The former, he felt, authorizes rejection when: The total combined length of high accident locations exceeds 15% of the total length of the proposed route. In analyzing the stretch of highway involved, Mr. Dunn compared it with similar highway sections throughout the state for its accident frequency record. He found that each year there was a segment along the proposed route which appeared as a high accident segment area. He added these up to get the total length of high accident highway and got a figure that was 13% of the total route. Though the directive considered a minimum of 15% as disqualifying, Mr. Dunn concluded that 13% was close enough to qualify. The figure arrived at was not the required 15%, however. Mr. Dunn also considered that Highway safety consideration which read: d. The route does not provide a minimum passing sight distance of one-half mile at a maximum of three mile intervals. To qualify as a safe segment, there must be passing areas with a 1/2 mile sight distance, within 3 miles of each other. This road does not comply with that criterion. Mr. Dunn made field measurements of the route in question and found that heading westbound, the first passing zone started at mile 1.3 and ended at mile 1.8; the second started at mile 2.4 and ended at mile 2.5; and the third started at mile 4.1 and ended at mile 4.8. After that, westbound, there were no more 1/2 mile passing zones within the 3 mile maximum separation. Evaluating that stretch, while the 1.3 - 1.8 segment is 1/2 mile in length, it is not within 3 miles of the next qualifying passing segment. The same can be said for zone 4.1 - 4.8. Passing segment 2.4 - 2.5 is no good because it is not 1/2 mile in length. Looking at the eastbound route, there is one qualifying passing zone, between mile .4 and mile 1.0 and one between mile 3.8 and mile 4.3, but there are no more 1/2 mile passing zones within 3 miles of each other, so, in his opinion, the eastbound route does not qualify, either. Sometime later, Mr. Dunn measured the highway again based on information presented to him that the route had been re-striped. His second evaluation indicated the situation is now worse that it was before since fewer areas are now striped for passing. A 1989 report of the Transportation Research Board of the National Research Council, supports the method of evaluation Mr. Dunn used here. It increases the minimum passing distance to 3040 feet, a distance much greater than the 2640 feet, (1/2 mile) utilized in the Department's criteria. In addition, the Manual on Uniform Traffic Control Devices, published by the Federal Highway Administration, supports a 900 foot passing distance for passenger cars passing passenger cars. That's a much shorter distance than is needed for cars passing large trucks. Mr. Dunn concluded that taken alone, the passing distance rejection criteria would have been enough to disqualify the Petitioner's application, and when it was considered along with the close issue of the high accident percentage, he was satisfied that rejection was clearly appropriate. However, he did not make any recommendation to his supervisor as to what should be done with this application. He merely reported his findings to his supervisor, Mr. Buser, who made the decision to deny approval. Mr. Buser has serious doubts was to whether the intersection of State Road 50 and I-75 is a trouble spot. The high number of accidents utilized by Mr. Dunn in his analysis all took place at or near the intersection, a point argued by Mr. Gay. Mr. Buser is of the opinion that even if that intersection is not a trouble spot, the Department could prohibit tandem trailer trucks from exiting the interstate there in any case. This has not been done, however. According to Petitioner's representative, Mr. Gay, the requirement to break down the tandem rigs and tow them individually over the route to the terminal creates additional traffic and a resultant increased risk of accident. It also requires increased fuel usage, utilizes increased mileage, and results in increased environmental pollutions. Costs increase, wear to the equipment increases and the result is a loss in productivity. Allowing tandems to traverse the route to the terminal intact would, he claims, reduce traffic and avoid the other undesirable consequences he cited. No doubt it would. On May 13, 1991, Mr. Gay covered the route from I-75 to the terminal. He got behind a truck at I-75 and by the time they got to the first passing zone, the truck was doing 55 mph in a 55 mph zone. After that, there was no reason to pass, since 55 mph is the maximum speed permitted. This presupposes that all drivers observe the speed limit. Travel on the highways of this state show this to be an unjustified presumption. On May 20, 1991, he repeated the experiment and followed a truck to the first passing zone, by which time he was going 49 mph. These two experiments do not have major evidentiary value. Mr. Gay also noted some other pertinent facts regarding permitted activities on State Road 50, which went uncontradicted by the Department. Mobile homes up to 85 feet in length may be towed by a tractor; trailers up to 57.6 feet in length with a 12 month permit, (when the tractor is added, the total length is 68.6 feet); large boat haulers are allowed; and tandem trailers for household movers are allowed anywhere. Only tandem long haulers are not allowed on highway 50. These tandems trailers are 28 feet long each, with a 4 foot dolly between them. When a tractor is added, the total length is 71 feet, which is 2 1/2 feet longer than a large tractor and trailer. In light of the above, Mr. Gay contends that since all these other units are allowed, his should be allowed as well. He admits, however, that mobile homes and other oversize loads generally have escort vehicles preceding and following. He also recognizes that the handling characteristics of the tandem rig are different than those of the single unit trailer. Nonetheless, based on his research, he contends there are sufficient passing zones all along the route to make it safe. State guidelines, however, indicate to the contrary. Nothing above is intended to indicate that Petitioner is operating other than in a satisfactory manner. In its most recent rating by the United States Department of Transportation, the company was awarded a satisfactory evaluation. In addition, there is no doubt that numerous commercial enterprises served by the Petitioner would consider the opportunity to carry more cargo beneficial to their operations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that if such action is consistent with then existing legislation, the Petition by Consolidated Freightways, for a tandem trailer route over State Road 50 from I-75 to its terminal near Brooksville, Florida be denied. RECOMMENDED this 11th day of July, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991. Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS - 58 Tallahassee, Florida 32399-0450 Andrew J. Gay, Jr. Safety Supervisor Consolidated Freightways 5625 Carden Road Orlando, Florida 32810 Ben G. Watts Secretary Department of Transportation Hayden Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel D.O.T. 605 Suwannee Street Tallahassee, Florida 32399-458
The Issue Whether disciplinary action should be taken against Respondent’s license to practice contracting, license number CGC 060878, based on violations of Subsection 489.129(1), Florida Statutes (2005)1, as charged in the three-count Administrative Complaint filed against Respondent in this proceeding. Whether Respondent violated Subsection 489.129(1)(g)2., Florida Statutes (Count I) by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer; Subsection 489.129(1)(j), Florida Statutes (Count II) by abandoning a construction project in which the contractor is engaged or under contract as a contractor, and Subsection 489.129(1)(m), Florida Statutes (Count III) by committing incompetency or misconduct in the practice of contracting. And, if so, what discipline should be imposed, pursuant to Section 489.129, Florida Statutes, and Florida Administrative Code Rule 61G4-17.002.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are determined: At all times material, Respondent was a certified general contractor, having been issued license number CGC 060878 by the Florida Construction Industry Licensing Board (CILB). At all times material, Respondent was the qualifier of Epic Building and Development Corporation, a Florida Corporation, with its principal place of business in the Fort Myers area. On February 22, 2005, Respondent entered into a contract with Edward Dueboay to rebuild a house owned by Dueboay and his wife, located at 22299 Laramorre Avenue, Port Charlotte, Florida, which had been distroyed some months earlier by Hurricane Charlie. The price of the contract was $150,000.00. On or about March 24, 2005, Dueboay gave Respondent a check in the amount of $3,500 payable to Contractors Marketing America, Inc. (CMA, Inc.), for the engineering plans. On May 6, 2005, Dueboay paid Respondent $5,000, as an advance on the contract. Respondent did not obtain the building permit from the Charlotte County Building Department until December 12, 2005, and work on the project did not start until January 2006. Because of the enormous damage caused by the hurricane, contractors in the area were flooded with jobs, and significant shortages in building materials also occurred. On January 13, 2006, Respondent billed Dueboay $11,000.00 for land clearing and filling, $750.00 for permit fees, and $3,200.00 for a temporary electric pole. The bill gave credit for the $5,000.00 Dueboay paid on May 6, 2005, and showed a balance due of $10,000.00. On January 20, 2006, Dueboay paid the above-mentioned invoice, by check to Respondent, in the amount of $10,000.00. Respondent paid $4,600.00 to the sub-contractor who performed the lot clearing and filling, but billed Dueboay $11,000.00. However, the contract provided for a $2,500.00 allowance for clearing and filling, and a $750.00 allowance for permit fees. Section 11.c of the contract also provided that Respondent shall provide and pay for all materials and utilities and all other facilities and services necessary for the proper completion of the work on the project in accordance with the contract documents. To pay for the remainder of the contract, Dueboay negotiated and obtained a loan in the total amount of $153,000.00 from Suncoast Schools Federal Credit Union (Credit Union). On March 21, 2006, Dueboay and the Credit Union signed the construction loan agreement. On March 21, 2006, Respondent was paid $18,235.00 by the Credit Union for the pre-cast walls used in the erection of the structure. On May 11, 2006, Respondent finished Phase I of the project. On May 15, 2006, Respondent received $11,350.00 as the first draw by the Credit Union. On June 20, 2006, Respondent finished Phase II of the project. On June 20, 2006, Respondent was paid $26,335.00 as the second draw by the Credit Union. From June 2006 to November 2006, Respondent performed no work on the house under the Dueboay contract. Because the roof was not completed, mold appeared on and in the house. On August 21, 2006, Dueboay paid $109.95 to America’s Best Cleaning and Restoration, Inc., for mold removal. On or before September 13, 2006, Dueboay hired an attorney to clarify billing charges related to lot filling, permit fees and the temporary electric pole, and to prompt Respondent to resume work abandoned since June 2006. Under the Credit Union Loan Agreement, after several extensions, the completion of the Dueboay home should have taken place on or before October 17, 2006. On October 18, 2006, the Loan Agreement extension expired, and Dueboay was required to pay mortgage and interest on the loan, even though construction of the house was not completed. On November 10, 2006, Dueboay’s attorney sent Respondent a third letter advising him that the project was stagnating; that after eighteen months since the signing of the contract, the roof of the house was not yet completed; and that, under the contract, Respondent was obligated to substantially complete all work in a reasonable time after construction had started. On or about December 1, 2006, the building permit expired and had to be renewed. At some point after November 10, 2006, Respondent resumed work and finished Phase III on March 8, 2007, with the exception that some doors were not installed, including the garage door. Respondent submitted a sworn Contractor’s Affidavit stating that all subcontractors had been paid, and that there are no liens against Dueboay’s property. However, Dueboay had to pay Charlotte County Utilities $224.93 on October 29, 2007, and $240.00 to Pest Bear, Inc., on May 7, 2008, to avoid two liens being recorded against his property. From March 8, 2007, until July 2007, Respondent performed no work under the contract. David Allgood, another general contractor, was hired by Respondent to complete some of Respondent’s projects in the Port Charlotte area, including the Dueboay house. However, Dueboay was not informed of this arrangement. There was no contract directly between Dueboay and Allgood. On September 4, 2007, relying on advice from his attorney, Dueboay changed the locks to the house, with the intent to keep Respondent and his employees off his property. Shortly thereafter, employees of general contractor David Allgood broke the front lock and entered the property in September 2007, without Dueboay’s permission. Dueboay, again, following advice from this attorney, called law enforcement to eject Allgood’s employees from his property. Allgood attempted to invoice Dueboay for installing some doors on the house that Respondent had previously paid for, and which Respondent should have installed. However, following advice from his attorney, Dueboay resisted Allgood’s request to pay him for the doors. Respondent was paid a total of $122,246.03 for the Dueboay project, before the contract was cancelled. Respondent did not complete work from Phases IV and V, with the following exceptions: he did some work on the driveway, painted the interior, did some cabinet work, exterior trim and soffit, siding, stucco, and some interior trim. Therefore, Respondent completed, at best, three out of seven operations from Phase IV (interior and exterior paint, interior trim and doors, and exterior trim and soffits) and worked on, but did not complete, stucco and some cabinets. From Phase V, Respondent only worked on the driveway and sidewalks, which had to subsequently be repaired. Dueboay hired Storybook Homes, Inc. (Storybook), to complete work abandoned by Respondent from Phases IV and V. Storybook was hired to complete work as follows: install cabinets and vanities, install ceramic tiles, repair stucco, install custom tub, all electrical and plumbing per code, complete exterior paint, install hardware, sinks and faucets in the baths and showers, complete floors, install all appliances, complete air conditioning and heat, and obtain the certificate of occupancy. The amount of $122,246.03 paid to Respondent at the time when Respondent abandoned the Dueboay project represents 81 percent of the total contract price of $150,000.00. Respondent completed, at best, 75 percent of the job by completing only three out of seven operations of Phase IV and working on some additional operations that needed to be redone, like the driveway, sidewalks and stucco. Due to Respondent’s failure to perform work on time, Dueboay incurred $5,116.42 in additional expenses, as follows: $109.95 on August 21, 2006 (mold removal), $360.00 on November 23, 2006 (legal fees), $175.00 on June 4, 2007 (legal fees), $375.00 on September 4, 2007 (legal fees), $224.93 on October 29, 2007 (to satisfy lien), $668.34 on November 3, 2007 (legal fees), $200.00 on April 4, 2008 (legal fees), $1,151.05 on May 7, 2008 (to correct work performed deficiently by Respondent), $390.00 on May 7, 2008 (to repair driveway), $240.00 on May 7, 2008 (to avoid lien), and $412.00 on May 12, 2008 (to install safe room door that Respondent failed to install). The total investigative costs of this case to Petitioner, excluding costs associated with any attorney’s time, for Petitioner’s case no. 2005-028129 was $276.18.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board render a Final Order as follows: Finding Respondent guilty of having violated Subsection 489.129(1)(g)2., Florida Statutes, as alleged in Count I of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500. Finding Respondent guilty of having violated Subsection 489.129(1)(j), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500. Finding Respondent guilty of having violated Subsection 489.129(1)(m), Florida Statutes, as alleged in Count III of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500. Respondent’s license to practice contracting (CGC 060878) be suspended for a period of three months, followed by a period of probation for two years, upon such conditions as the Board may impose, including the payment of costs and restitution. Requiring Respondent to pay financial restitution to the consumer, Edward Dueboay, in the amount of $5,116.42 for consumer harm suffered due to payment of additional expenses. Requiring Respondent to pay Petitioner’s costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $276.18. DONE AND ENTERED this 21st day of July, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 21st day of July, 2009.
The Issue Whether the sign on the side of the Respondent's trailer, which has been placed on the east side of I-4, .01 mile south of Buffalo Avenue in Hillsborough County, is a nuisance which should be removed, pursuant to Chapter 479, Florida Statutes.
Findings Of Fact In early February 1990, the Department's Outdoor Advertising Administrator with District 7 observed the following: a 13' x 40' metal trailer with a large advertisement for Contractor's Exams on its side in a stationary location. The trailer was approximately twenty feet from the I-4 right-of-way fence, on the east side of the highway, one-tenth of a mile south of Buffalo Avenue in an unincorporated area of Hillsborough County. The advertising message was clearly visible from the main travel way of the interstate highway. During a sixty-day period, the administrator regularly observed this trailer to see if it had been relocated in anyway. When he determined from the observations that the trailer had not been moved, he visited the property where the trailer was located on April 2, 1990. The business enterprise at this location is South Florida Engineering Company. As part of its business, this company has trailers, tractors and other equipment parked on site. When the administrator and an outdoor advertising inspector entered the property, they went to the office and inquired about the one trailer. The administrator was directed to another manager who has his office in the dock area. No one met with him at this location, and he was unable to get any more assistance from the man with whom he had spoken earlier. Having observed the trailer on the premises, and having observed its distance away from other equipment, along with its position in relation to the highway and the type of message printed on its side, the administrator issued a Notice of Violation. The administrator determined that the printed message on the trailer's side advertising Contractor's Exams was a unpermitted sign, in violation of Section 479.07(1) Florida Statutes. Another copy of the notice was mailed to Carl Mathews Construction School. The reason the notice was mailed to this enterprise was because the school's services were being advertised by the sign. The mailing address was ascertained by calling the phone number on the advertisement and requesting the address. The inspector accompanying the administrator physically attached the Notice of Violation on the trailer and took a picture of it on this same date. Subsequent to April 2, 1990, the inspector took pictures of a different trailer on the same site with the same advertising message. In these later pictures, the trailer was farther away from the right-of-way fence, but the message could still be seen from the interstate highway. The trailer remained isolated from other trailers on site. These additional pictures were taken on June 15 and 26, and July 18, 1990. In addition to the trailer in I-4 and Buffalo Avenue, the inspector became aware of another trailer with the same message at State Road 60 and Adamo Drive. This trailer's message could also be seen from the road. It remained at this location in the same stationary position from the middle of June through mid July. This trailer was parked in a trailer yard. Mr. Carl Mathews is the owner of Carl Mathews Construction School, the business advertised on the side of these two trailers. In addition to this enterprise, Mr. Mathews is actively involved in the business of leasing trailers, like the two previously mentioned. Ordinarily, these are leased to Contractors for the storage of on-site supplies or to truckers for over the road hauling. Through his various interests in a number of corporations, Mr. Mathews has an interest in one hundred and thirty trailers as well as the trailer yard at State Road 60 and Adamo Drive. Only two of these trailers display an advertisement for Carl Mathews Construction School. The trailer originally at the I-4 and Buffalo Avenue site from February through April 2, 1990, was there for two reasons. First of all, the strip of property where both trailers were ultimately located had been leased by one of the corporations in which Mr. Mathews is a principle. The purpose of the lease was to store empty trailers during the time periods they were not being leased. Storage of this type of trailer is difficult in Hillsborough County because ordinances only allow them on property zoned for industrial use. Secondly, the trailer in question needed its brakes redone. During this time period, this repair was going to be performed by South Eastern Mechanical, who runs a repair business at this site. Later, this trailer was moved to the State Road 60 - Adamo Drive storage yard in which Mr. Mathews has an ownership interest. This yard had recently acquired its own mechanic who will repair the brakes. The second trailer was also placed at the I-4 - Buffalo Avenue location for storage purposes. The Carl Mathews Construction School is located at 7207 North Nebraska Avenue in Tampa. There are no school functions at the I-4 - Buffalo Avenue location. The purpose of the written message on each trailer was to inform members of the public interested in Contractor's Exams that Carl Mathews Construction School was offering new courses. A sign permit has not been issued by the Department for either trailer during their stays at the I-4 - Buffalo Avenue location.
Recommendation Based on the foregoing, it is recommended: That the Notice of Violation issued against the first trailer at the I- 4 - Buffalo Avenue location be found be have been properly issued by the Department. That Contractor be found to have fully complied with the Notice of Violation issued April 2, 1990. RECOMMENDED this 25th day of September, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2427T The Department's proposed findings of fact are addressed as follows: Accepted. See HO number 1, number 2 and number 5. Accepted. See HO number 10, number 11, number 14 and number 16. Accept first sentence. See HO number 10. The rest is rejected as irrelevant to the dispute of material fact. Contractor's proposed findings of fact are addressed as follows: Accepted. Although the Department did comply with all necessary legal requirements when the violation was posted on the first trailer. Accept all but last two sentences. See HO number 8. The last two sentences are contrary to fact. See HO number 15. There was no showing that the second trailer had been moved from the I-4 - Buffalo Avenue location. There was insufficient reliable evidence presented at hearing for the Hearing Officer to accept this presumption. More reasonable, contrary evidence was accepted by the Hearing Officer which revealed that the second trailer remained at this location. See HO number 9. Rejected. Contrary to fact that the first trailer was able to operate on the road. See HO number 14. Otherwise, accept that trailers were the type of trailers pulled by truck tractors. Accepted. But factual dispute was reconciled. See HO number 1 and number 8. Rejected. Contrary to fact. See HO number 18. Accept all except last sentence. See HO number 10, number 12, number 13, number 14 and number 15. Last sentence is improper conclusion and contrary to reasonable inference. See HO number 9. Rejected. Improper comparison without proper foundation. Rejected. Improper legal argument. Accept the first sentence. See HO number 10. Reject the last sentence as self serving. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue The issue is whether Respondent undertook to act as a contractor without a license as charged in the Administrative Complaints, and if so, what disciplinary action should be taken.
Findings Of Fact Pursuant to Section 20.165, the Division of Professions is a subordinate unit of the Department of Business and Professional Regulation (the Department). The Department provides administrative support, including prosecutorial support to the Construction Industry Licensing Board (the Board), which is also located within the Department. Mr. Grandmont is not currently licensed as a State Registered or State Certified Contractor in this state, nor has he ever been licensed by the Board. Mr. Grandmont's last known address is 355 China Berry Circle, Davenport, Florida. He was provided notice of the hearing at that address, and at 7733 Park Road, Charlotte, North Carolina 28210, which is the address he used when demanding a hearing on disputed facts in two of these cases. In DOAH Case No. 06-3279, he provided no address in his demand for a hearing. All attempts by U. S. Mail to notify Mr. Grandmont of the hearing, were returned. Mr. Grandmont is deemed to have known of the time, date, and place of the hearing, and is deemed to have waived his appearance at the hearing. On November 11, 2005, subsequent to Hurricane Wilma, Robert L. Coe, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged mobile home. He provided a written estimate of $10,500. The estimate contained a list of 11 items requiring repair, and stated that he would accomplish the repair of them. He demanded a $4,200 down payment, which Mr. Coe provided in a draft drawn on Fidelity Cash Reserves, and dated November 11, 2005. Mr. Coe never saw Mr. Grandmont again. The repairs set forth in the written estimate were not accomplished. The draft, however, was negotiated by Mr. Grandmont. On November 12, 2005, subsequent to Hurricane Wilma, Joseph Webster, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged residence. Mr. Grandmont discussed charging $13,500 in return for repairing Mr. Webster's residence. After negotiations, Mr. Grandmont agreed to do it for $11,500. No written estimate or contract was prepared. Mr. Grandmont demanded $5,750 payment in advance. Mr. Webster rounded off the down payment to $6,000 and presented Mr. Grandmont an official check of the Taunton Federal Credit Union, of Taunton, Massachusetts, for that amount. The check was negotiated by Mr. Grandmont, but the promised repairs were not accomplished. On November 4, 2005, subsequent to Hurricane Wilma, Ella Arseneau, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to replace her roof. He provided an estimate of $5,500 in return for repairing Ms. Arseneau's residence. He demanded that she pay $3,500 in advance, which Ms. Arseneau provided by presenting Mr. Grandmont a check for $3,500, drawn on an account in Wachovia Bank. The check was negotiated by Mr. Grandmont, but the roof was not repaired as promised. Mr. Coe is 78 years of age, Mr. Webster is 85, and Ms. Arseneau is 77.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation impose a fine upon Clifford Grandmont in the amount of $30,000. DONE AND ENTERED this 28th day of November, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Clifford Grandmont 7733 Park Road Charlotte, North Carolina 28210 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Simone Marstiller, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Department of Transportation (DOT), properly denied Petitioner's Application for Qualification to perform work on DOT contracts which exceed $250,000.00 pursuant to Chapter 337, Florida Statutes, and Rule Chapter 14-22, Florida Administrative Code.
Findings Of Fact Petitioner, Morse Diesel Civil, LLC ("Morse Diesel"), is a new company created to perform heavy civil construction, in particular large road and bridge projects. Morse Diesel is owned 80 percent by Morse Diesel Civil, Inc., and 20 percent by KPG, Inc. Morse Diesel Civil, Inc., is owned by AMEC Holdings, Inc. KPG, Inc., is owned by Richard Kelly ("Kelly") and Jack Palmer ("Palmer"). Together, Kelly and Palmer have over 50 years' experience in heavy civil construction. On October 8, 1998, Morse Diesel filed an application for qualification with the Florida Department of Transportation ("DOT") to perform all classes of road and bridge work except for bascule bridge rehabilitation. Since the company was new and had not yet performed any work, the letters of recommendation provided in the application related to Morse Diesel International, Inc. ("MDI"). MDI is a large commercial construction management company owned by AMEC Holdings, Inc. Through DOT requests for additional information, Morse Diesel learned that DOT was interested in the experience of its principals and recommendations regarding their work. The work experience of Kelly, Palmer, John Zito, and Grant Ralston was provided to DOT in response to those requests. Under Rule 14-22.003, Florida Administrative Code, DOT thoroughly evaluated Morse Diesel and awarded it an Ability Score of 75 out of 100. DOT found that Morse Diesel had the necessary organization and management, adequate equipment, and a satisfactory work performance record which included an evaluation of the quality of completed work, any history of payment of liquidated damages, untimely completion of projects for which liquidated damages were not paid, cooperative attitude, contract litigations, claims, and defaults. Their score of 75 also included an evaluation of their integrity and responsibility. To date, Morse Diesel's ability score remains unchanged and in effect. On January 11, 1999, Morse Diesel was granted a Certificate of Qualification to perform all classes of work requested except major bridges and provided a maximum capacity rating of $200,000,000; that is, the total aggregate dollar amount of uncompleted work a contractor may have in progress at any time. Thereafter, Morse Diesel applied for a revised Certificate of Qualification to include major bridge classifications. DOT requested and was supplied additional information regarding the work experience of Kelly, Palmer, Zito and Ralston. DOT served a Notice of Intent to Deny the application for additional classes of work and Morse Diesel filed a request for a Section 120.57, administrative hearing. That case was dismissed as moot when Morse Diesel did not renew its Certificate of Qualification. On February 2, 2000, Morse Diesel applied for a Certificate of Qualification for all classes of road and bridge work except for bascule bridge rehabilitation. DOT denied its application on March 3, 2000. The decision to deny an application for Qualification is a very serious matter and each application is thoroughly evaluated by DOT. Less than one percent of all applications are denied. The decision to deny the February 2, 2000, application of Morse Diesel was made by the DOT pre-qualification engineer, Lewis Harper. The Notice of Intent to Deny the Application ("Notice of Intent") was written by Mr. Harper and Brian McGrail of the legal staff and identified the factual bases for the denial of the application and all the statutory and rule criteria utilized in the review of the application. Summary of Allegations The grounds for denial identified by DOT in the written Notice of Intent are: (a) a record of contract litigation, claims, uncooperative attitude, untimely completion of projects without payment of liquidated damages, and defaults by the management of Morse Diesel (Kelly and Palmer) when they worked for S. J. Groves and Sons, Inc., and Balfour Beatty Construction, Inc., on major bridge projects in Alabama, West Virginia, and Florida; (b) S. J. Groves was defaulted on the Cochrane Bridge Project by the State of Alabama; (c) Kelly and Palmer had substantial supervisory and management responsibilities for the Cochrane Bridge project and contributed substantially to the difficulties experienced by the Alabama Road Department; (d) The answer to Question 19-2 of the application regarding Kelly's and Palmer's involvement in the Cochrane Bridge project does not accurately reflect their role and is considered false, deceptive or fraudulent; (e) Kelly and Palmer had responsibility for prosecuting work and making decisions for filing claims on the Wierton-Stubenville Bridge project in the State of West Virginia and there were substantial delays and disputes over settlement of claims; (f) Kelly and Palmer were litigious and claims-oriented when they were associated with Balfour Beatty in Florida; (g) MDI is an affiliate of Morse Diesel because Norm Fornella is an officer is both companies and MDI was not listed in the application as an affiliate; (h) Morse Diesel did not advise DOT of the default of MDI; and (i) KPG is an affiliate of Morse Diesel because Kelly is an officer in both companies and KPG was not listed in the application as an affiliate. The application was not denied due to a lack of adequate experience or equipment. Although Morse Diesel listed the same affiliates in its 1998 application as it did in its 2000 application, the 1998 application was partially granted and the failure to list affiliates was not a ground for denial of the request for additional classes. Allegations (a)-(d): Record of Contract Litigation, Claims, Uncooperative Attitude, Untimely Completion of Projects and Defaults by Management of Morse Diesel The right to submit a claim is a valuable right of the contractor. If a contractor contends he/she is due additional time and money, it is common for him/her to pursue his/her claims rights. If the liability for unforeseen circumstances falls on the owner, the contractor typically pursues claims based upon the increased cost associated with the extra time and expense occasioned by the unforeseen circumstances. Kelly and Palmer have been involved in very difficult, highly technical jobs throughout their careers. It is common for these projects to involve a number of problems and related change items. Industry-wide, complex projects often involve change item costs ranging between 12 percent and 20 percent of the contract price. The Cochrane Bridge Project; Kelly's and Palmer's Involvement; and Application Question 19-2 Construction on the Cochrane Bridge was begun in 1985. Kelly was an executive vice president of S. J. Groves at the time and was also responsible for 30 or 40 other projects. At the same time, Palmer was a vice president of operations for S. J. Groves responsible for 10 to 12 projects. The project manager for the Cochrane Bridge project reported to Palmer and Palmer visited the project every two weeks, mainly to solve problems. The Cochrane Bridge was one of the first cable-stayed bridges built in the United States. It was designed by an Italian design firm and could not be built in accordance with the method of construction proposed by the designer. Moreover, each time there was a design problem, the Italian design firm had to be consulted, which took a great deal of time and caused delays. The Cochrane Bridge was designed to withstand a certain maximum load after construction was completed. The bridge, however, was undergoing greater stress while it was under construction. Consequently, disagreement ensued over the sequence of erection, whose responsibility it was to develop the erection sequencing, whether additional strengthening was needed during construction and, if so, who would pay for it. While these issues were addressed, S. J. Groves stopped work on the project. The State of Alabama requested Groves to work on other areas of the project during the down-time, but Mr. Groves refused for economic reasons. Alabama threatened to default Groves if they did not return to work. Kelly and Palmer attended several high-level company meetings where the issue of whether to continue the project was discussed by Franklin Groves, the owner of S. J. Groves, as well as the company's president and general counsel. Although Kelly and Palmer recommended that S. J. Groves remain on the project, their recommendation was overruled and a default was entered by the State of Alabama. Kelly and Palmer left S. J. Groves within 6 months of the default and formed their own company, RNE, in 1989. There is no reliable evidence that they "contributed substantially to the difficulties experienced by the Alabama Road Department" as charged in the Notice of Intent to Deny. S. J. Groves pursued litigation against the Alabama road department regarding the default and a settlement was reached. The contractor chosen to take over the job after the Groves default, filed claims of approximately $10,000,000 to $12,000,000, and also wound-up in litigation with the State of Alabama. There were thirty to forty vice presidents of S. J. Groves. Neither Kelly nor Palmer understood that they served as a corporate officer of S. J. Groves until after Morse Diesel had filed the 1998 application and were shown corporate forms filed with the Secretary of State. In response to Question 19-2 in the application, Morse Diesel stated: "Richard Kelly and Jack Palmer were denominated vice presidents of S. J. Groves, which defaulted on a job in Alabama in 1989. S. J. Groves had a number of people denominated as Vice Presidents and neither Mr. Kelly nor Mr. Palmer was at the level of management responsible for the decision to abandon the Cochrane Bridge Project. Both Mr. Kelly and Mr. Palmer recommended against abandoning the project and were overruled. They then left the company." There is no evidence which contradicts this finding. Allegation (e): Kelly's and Palmer's Involvement in the Wierton- Stubenville Project DOT presented no evidence to support its charge in the Notice of Intent that Kelly and Palmer were responsible for making the decision to file claims on the Wierton-Stubenville Bridge in the State of West Virginia and that there were substantial delays and disputes over settlement of claims. The only direct evidence is that Kelly was not involved in the preparation of claims or claims settlement on the Wierton- Stubenville project. The record is silent as to Palmer's involvement, if any. Allegation (f): Kelly's and Palmer's Involvement in Litigation and Claims at Balfour Beatty Kelly and Palmer were involved in Balfour Beatty's initial foray into the heavy civil construction business in Florida. In the early 1990's, Kelly met with DOT on Balfour Beatty's application for qualification to bid. At that time, DOT was on notice and inquired about Kelly's and Palmer's involvement in the S. J. Grove's default in Alabama. The Cochrane Bridge project was discussed in detail during a meeting held at DOT headquarters in Tallahassee. After being qualified, Balfour Beatty bid $82,000,000 on a large I-95 project in Broward County and was the successful low bidder by $1,000,000. In the beginning of the project Kelly and Palmer acquired staff and equipment, wrote purchase orders for materials, and supervised the project. On December 31, 1991, Dan White was hired as the project manager and Palmer visited the site every couple of weeks until problems on the project escalated. As the project manager, Dan White was in charge of the job and was responsible for the filing of claims. There were right-of-way problems and contaminated soil which delayed the project from the beginning. An initial design problem resulted from the project having been designed by two different design firms operating from different types of surveys. Consequently, the road was not aligned at the same elevation to match existing structures. These elevation problems shut down the project for months. None of the design, right-of-way, or soil contamination problems was the fault of Balfour Beatty. Nonetheless, DOT rejected all change items and required Balfour Beatty to file claims. A lawyer for DOT eventually became involved in the project in an attempt to settle the disputes which resulted in the preparation of Supplemental Agreement Number 73. SA-73 settled the claims up to that date, set new dates for project completion and paid money for completion by those dates. SA-73 was entered into based upon DOT's assurance that a constructibility review had been completed to make sure that the remainder of the project could be constructed in accordance with the existing plans and there would be no further design problems. However, the constructibility review was not complete and new design problems occurred immediately. The design of the parking lots was changed as they were being built. Core holes, used to determine the depth and density of the pavement had not been drilled. This caused more delays and claims. Balfour Beatty filed a lawsuit against DOT, Morrison Knudsen, the CEI on the project, and DOT personnel on site. The case was settled against DOT and its personnel for $4,750,000 and a jury awarded $4,300,000 against Morrison Knudsen. Balfour Beatty remains qualified to bid on DOT projects and was awarded a contract to build the Fuller Warren Bridge in Jacksonville. Kelly and Palmer, as consultants to Balfour Beatty, participated in preparing the bid for the Fuller Warren Bridge and that project is currently staffed with many of the same personnel who worked on the Broward County I-95 project, including the project manager, Dan White. The Broward County I-95 project was awarded on a bid of $82,000,000. DOT paid Balfour Beatty $97,000,000. The completion of the I-95 project was one to two years late and resulted in over 100 claims being filed. The Fuller Warren Bridge project was awarded on a bid of $81,000,000 and has cost to date approximately $94,000,000 to $96,000,000. None of the problems on the I-95 project were caused by Kelly or Palmer. Neither Kelly nor Palmer was involved in the preparation of the lawsuit or its settlement. ALLEGATION (g): Statements in the Application on Affiliations According to DOT's application, "The term 'affiliate' means a predecessor or successor of a contractor under the same, or substantially the same, control or a group of business entities which are connected or associated so that one entity controls or has the power to control each of the other business entities. The term 'affiliate' includes the officers, directors, executives, shareholders active in management, employees and agents of the affiliate. The ownership by one business entity of a controlling interest in another business or a pooling of equipment or income among business entities shall be prima facie evidence that one business entity is an affiliate of another." In its application for bid qualification, Morse Diesel listed Morse Diesel Civil, Inc. and AMEC Holding, Inc. as its affiliates. Morse Diesel did not identify either MDI or KPG as "affiliated companies" in response to question number 8 in the application. The application was prepared under the direction of Morse Diesel's President, Mitchell Becker who has a master's degree in civil engineering and a law degree. Based upon his interpretation of the definition, he determined in good faith that MDI and KPG were correctly omitted from the response to question 8 because neither met the criteria for "affiliate" as defined in the application. The answer to question 8 is the same in both the 1998 application and the 2000 application and DOT did not request additional information in the 1998 application related to the response nor did it list the failure to name MDI and KPG as affiliates as a ground for denial of the additional classes of work in 1999. There was a notation on page 2 of 19 in the 1998 application referring to MDI as a "sister company." The question requested letters of recommendation. Morse Diesel was a newly formed company, and did not have recommendations for projects it had completed. Instead, it supplied the recommendations of MDI. It became apparent to Morse Diesel through subsequent requests for additional information that DOT was interested in recommendations about the principals and management of Morse Diesel, not MDI. Consequently, when filing its 2000 application, Morse Diesel did not supply MDI letters of recommendation and instead provided recommendations on previous work completed by Morse Diesel personnel while associated with other companies. The only entities that are predecessor entities or have any control over Morse Diesel are Morse Diesel Civil, Inc. and AMEC Holding, Inc. KPG is not a predecessor or successor of Morse Diesel and has no ability to control it with 20 percent ownership. Similarly, MDI is not a predecessor or successor entity and has no controlling interest in Morse Diesel. There was no intent to hide the nature of Morse Diesel's relationship with MDI or KPG. The fact that Mr. Becker and Mr. Fornella are officers of both Morse Diesel and MDI is clearly stated in their résumés in the application. It is DOT's policy to deny application for misrepresentation only when it is intentional. Morse Diesel listed MDI as an affiliate in its Virginia application because the definition of "affiliate" in that application was broader and appeared to encompass MDI. Footnote 3 on page 7 of the audited financial statements refers to a transfer of funds from MDI to Morse Diesel. Mr. Becker, as president of Morse Diesel testified that the footnote in the financial statement attached to the application was a mistake. MDI has never advanced money to Morse Diesel. The advances made to Morse Diesel were made by Morse Diesel Civil, Inc. Mr. Becker as president of Morse Diesel is aware of the financial condition of the company and reviews the financial statements each month. There is no pooling of equipment or income between Morse Diesel and MDI. Allegation (h): Notice of the MDI Default Question 19-2 on page 16 of 23 of the application asks whether "any officer or partner of your organization has ever been an officer, partner or owner of some other organization that has failed to complete a construction contract?" In response to that question, Morse Diesel explained in the application that Kelly and Palmer had been associated with S. J. Groves when it defaulted on the Cochrane Bridge project in Alabama, but otherwise answered the question "no." Although Mr. Becker and Mr. Fornella are officers of both MDI and Morse Diesel, the application did not reveal the default of MDI on a project in St. Louis because the company is contesting the default and has not as yet failed to complete that construction contract; it is in litigation. There is no credible evidence that Morse Diesel or Mr. Becker intentionally omitted any information from the 2000 application. Allegation (i): See Findings for Allegation (g). Morse Diesel has demonstrated that it is competent and has experience to prosecute the work requested in the application. DOT has allowed at least one other applicant to amend its application to identify related companies as affiliates after DOT has denied certification on that basis. The résumés in the application and evidence presented at hearing reflect the work experience of the management of Morse Diesel and indicate extensive experience in heavy civil construction, including highly complex projects. The management of Morse Diesel has experience constructing all the types of road and bridges for which qualification is sought. Morse Diesel has been qualified in New Jersey, North Carolina, South Carolina, Virginia, Delaware, and Pennsylvania. Furthermore, Pennsylvania qualified Morse Diesel on the condition that Mr.Palmer remain associated with Morse Diesel and involved in any project awarded there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Morse Diesel be permitted to supply DOT with corrections to the unintentional inaccuracies in its application and be pre-qualified in the classifications for which it applied. DONE AND ENTERED this 5th day of July, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 5th day of July, 2000. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Brian F. McGrail, Esquire Brian A. Crumbaker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact In the fall of 1986, the Respondent, James A. Campbell, and his associate, David Ritchie, were operating a construction business known as Town & Country Construction Corp. of Tampa. Campbell was the company's qualifying contractor. At the same time, Campbell and Ritchie were in the process of starting a new company to be known as Bay City Builders, Inc. In the application for state registration of the new business, Campbell also was listed as the qualifying contractor. Campbell and Ritchie had business forms, including contract forms, printed in the name of Bay City Builders, Inc., so as to be ready to do business upon approval of the pending application. On December 5, 1986, an employee of Campbell's company, a Mr. Earl Mills, responded to a telephone inquiry from a Mrs. Josefina Rodriguez, who was interested in having a room added and some other renovations done to her home at 551 South Lois Avenue in Tampa. Mills erroneously committed Bay City Builders to a bid on the job before its application was approved. In addition, the bid was seriously low and committed to completion of the job in just 60 days, an overly optimistic time frame even on a reasonable bid. Rodriguez accepted the bid, and Mills obligated Bay City Builders to a contract with her on December 5, 1986, with an addendum dated December 18, 1986. When Campbell, who was out of town at the time, and particularly Ritchie found out what Mills had done, they fired Mills. But they decided to honor the contract. Work began timely during the last week of December, 1986. At the outset of the work, the plumbing subcontractor discovered seriously deteriorated pipes all the way to the street. It was agreed that the pipes would be excavated and replaced outside the contract, to be paid directly by Rodriguez. This delayed the performance of the contract for a limited period of time. Nonetheless, work progressed in a timely fashion through January, 1987. By January 12, 1987, Rodriguez had paid $7859 of the $12,300 due under the contract. By some point in January, 1987, the foundation footers for the 15' by 24' addition had been dug and put in, the rough plumbing had been done, the concrete slab for the addition had been poured, the concrete block walls had been laid, and the framing for the roof had been built. But then work stopped for several weeks. Mrs. Rodriguez became very concerned for several reasons. First, she was planning a trip to Puerto Rico from June to August, 1987, and, as she had explained to Mills and Ritchie, she wanted the work done before she left. Second, without a roof over the addition, water began to pool in the addition during rains and leak into the main part of the house. Third, she had had difficulty contacting the entity that had taken her money. Mills was gone, and Bay City Builders seemed to her not to exist. Campbell and Ritchie had withdrawn the application to qualify it after the Rodriguez fiasco, and it never did any business before or since. There never was a telephone listing for it. As early as February, 1987, Rodriguez sought help from the Better Business Bureau, which could not even find Bay City Builders, and filed a complaint with the Petitioner, the Department of Professional Regulation, that the contractor had abandoned the job. In mid-February, 1987, a crew returned to the job site and put plywood and tar paper roofing material on the roof. This stopped the water leakage into the main house. But then work came to a virtual standstill. All of the $7859 had been spent, and work had not progressed far enough for the next draw, $2000, under the contract. Ritchie tried to explain the situation to Rodriguez, starting from Mills' unrealistic bid. As it was, Ritchie explained, the work would be done but it was going to be long and slow. Ritchie wound up having to borrow money personally and prevailed upon sympathetic subcontractors to forebear in collecting their due in order for Ritchie to finish the project. Practically no work was done during the rest of February, any of March or the first part of April, 1987. In late April, 1987, without any prompting from the DPR or the Better Business Bureau, Ritchie managed to get workers to the job site to finish the dry wall in the addition, which would trigger the next $2000 draw under the contract, and to shingle the roof of the house (addition and pre-existing roof.) When this work was finished in May, 1987, Ritchie contacted Rodriguez to ask for the $2000 draw. Mrs. Rodriguez asked to be assured that the work would be finished before she left for Puerto Rico in June. Ritchie apologized but said it would be impossible under the circumstances. He asked her to allow the work to continue in her absence. Rodriguez refused and also refused to pay the $2000. She said if Ritchie couldn't finish the work before she went to Puerto Rico, she would get someone else to do it. That was the last Ritchie or Campbell heard about the Rodriguez job until DPR initiated this proceeding. Rodriguez did not contact another builder about finishing the work until the end of October, 1987.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against the Respondent, James A. Campbell. RECOMMENDED this 7th day of July, 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 7th day of July, 1988. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James A. Campbell 719 South 50th Street Tampa, Florida 33619 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street 6 Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner works for the Department of Transportation as an Engineer Technician III in the maintenance section of the Tallahassee field office in Leon County, Florida. Petitioner's position requires that he perform certain tasks in Leon, Gadsden, Jefferson, Wakulla, Franklin and Liberty counties. Ninety percent of Petitioner's duties involve the inspection of contract maintenance work within a six county area to ensure conformance to contract specifications, department specifications, rules, regulations, and policies. More specifically, Petitioner inspects, supervises, or measures: (a) work zone traffic control and maintenance of traffic setup; (b) contract roadside mowing, slope mowing, small machine mowing and hand trimming; (c) removal and replacement of existing striping, symbols and raised pavement markers; (d) roadway sweeping and edging and roadside litter removal; (e) tree trimming; and (f) brush removal, drainage repair and other activities assigned to Department of Corrections crews. Petitioner's job also requires him to: (a) prepare forms used for various concrete projects and daily inspection reports; (b) sample and test concrete and other materials as required; (c) calculate data and input it to computer for weekly status reports; (d) participate in Department/Contractor pre-construction conferences; (e) measure, compute and computerize quantities to be used for future contracts; (f) measure, calculate, and input to computer contract quantities to determine payment to contractors and for reporting to Respondent; and (g) assist in contract office administration by preparing required correspondence, documents and quantities on a personal computer. Approximately five percent of Petitioner's time is spent making daily pre-trip inspections of vehicles, tools and equipment including cleaning and maintenance or scheduling of maintenance. The remaining five percent of Petitioner's time is spent performing other duties as required. At times, Respondent's employees, including Petitioner's supervisors, have site meetings with county commissioners, county permitting officials, and/or their delegates. Occasionally Respondent enters into contracts, memoranda of agreement and joint participation agreements with counties and boards of county commissioners. Respondent's enforcement of these contracts sometimes conflicts with the desires of the local government. Petitioner currently provides specifications and inspects work being done by the county for driveways or county road intersections on a state highway. It is his responsibility to ensure that county employees comply with all specifications when widening turning lanes, deceleration lanes, and acceleration lanes or when placing culverts in ditches. Petitioner's job requires him to meet with county residents and private contractors to inspect work performed under a Department of Transportation permit. County residents often call upon their county commissioners to assist them when problems arise in the permitting or inspection process. Petitioner is not actively involved in issuing permits and awarding contracts. However, if Petitioner campaigns or becomes a county commissioner, a conflict of interest would arise any time the county residents put pressure on him to intercede on their behalf and take a position contrary to that of Respondent. In that case, Petitioner would be in a situation where regard for a private or local interest might lead to a disregard for the employee's duty as a state employee.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Respondent enter a Final Order denying Petitioner's request to campaign for, and to hold, the office of county commissioner in Liberty County, Florida. DONE and ENTERED this 6th day of May, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, 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 6th day of May, 1996. APPENDIX CASE NO. 95-5901 The following are the Hearing Officer's specific rulings on the finding of facts proposed by the parties in their proposed findings of fact. Petitioner's Proposed Findings of Fact Accepted in Findings of Fact 1 of this Recommended Order. Accepted in part in Findings of Fact 2-6 of this Recommended Order. Not supported by competent substantial evidence. The letter from the Clerk to the Board of County Commissioners of Liberty County is hearsay which is not sufficient to support a finding of fact. Section 120.58(1)(a), Florida Statutes. Irrelevant. Accepted in Finding of Fact 11 of this Recommended Order. Accept that, if elected, Petitioner would be a member of a board who could abstain from voting on matters involving a conflict of interest. However, reject that the influence of a county commissioner is limited to formal votes during board meetings. Therefore, irrelevant. Accepted in part in Finding of Fact 11. However, Petitioner admits that he could be required to work in permitting at anytime. Accept, however, if elected, Petitioner as a county commissioner would be meeting with the Assistant District Maintenance Engineer to discuss some issue then, as the state's inspector, be required to follow the engineer's policy decisions regardless of Petitioner's political position on that issue. Accept. However, the conflict of interest would still exist. Reject as not supported by persuasive competent substantial evidence. See above. Reject as not supported by persuasive competent substantial evidence. Reject. See above. Accept in Findings of Fact 11 of this Recommended Order. Respondent's Proposed Findings of Fact Accepted in part in Preliminary Statement. Petitioner's allegations are not findings of fact. Accepted as reasons Respondent gave for not giving Petitioner authorization to campaign and hold office. Accepted. See Preliminary Statement. Accepted in Findings of Fact 1 of this Recommended Order. Accepted in Findings of Fact 1 of this Recommended Order. Accepted in Findings of Fact 9 of this Recommended Order. Accepted in Findings of Fact 2 of this Recommended Order. Not necessary for resolution of the case. Accept as a specific example of conflict described in Findings of Fact 10 of this Recommended Order. Accepted as restated in Findings of Fact 9-11 of this Recommended Order. COPIES FURNISHED: Charles G. Gardner, Esquire Dept. of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 David Summerlin Post Office 122 Hosford, FL 32334 Ben G. Watts, Secretary Attn: Diedre Grubbs Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
