The Issue The issue presented for decision herein is whether or not Respondent's certified general contractor's license should be revoked, suspended, or otherwise disciplined based on conduct set forth in two Administrative Complaints filed herein dated March 14 and July 19, 1984.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. At all times material hereto, Respondent was a certified general contractor in Florida and has been issued license number CGC 015834. 3/ (Petitioner's Exhibit 1) Petitioner is an agency of the State of Florida responsible for enforcing the provisions of Chapter 489, Florida Statutes, relating to the imposition of licensure standards and standards for the practice of contracting. During times material hereto, Respondent was a full-time employee of the Metropolitan Dade County Aviation Authority. At no time during his employment with the authority did Respondent advise the Dade County Aviation Authority that he was performing work outside the scope of his employment while on County time. When confronted with the results of an investigation undertaken by the Dade County Attorney's Office in June of 1983 with regard to his (Respondent's) possible violation of the Code of Metropolitan Dade County, Respondent resigned from his position with the County. (Tr. pages 101-102) DOAH CASE NO. 84-1298 During late February, 1983, Albert Kairy contracted with an unlicensed contractor for the closure of a carport at his residence located in North Miami, Florida. After observing Respondent's classified advertisement in a local flier, Kairy contacted Respondent with regard to preparing necessary blueprints for the enclosure. Kairy contracted with Respondent to prepare both the blueprints and to supervise the activities of the unlicensed contractor. The contract amount was $400. On February 25, 1983, Kairy received an owner/builder permit for the carport enclosure from the City of North Miami. (Tr. pages 7-10, 93) Subsequently, problems began to develop with work performed by the unlicensed contractor and Respondent persuaded Kairy to dismiss that individual and to retain him as the contractor. On March 7, 1983, Respondent entered into a contract with Kairy to construct a room addition to the residence. (Petitioner's Exhibit 2) The project was to be completed pursuant to plans and specifications approved by the City of North Miami. The contract called for a bedroom addition; an additional bathroom and a utility room. The contract included extending the carport wall approximately 101 feet. The contract price was $14,500 which included an advance of $2,500. On March 12, 1983, Respondent entered into a second construction contract with Kairy. (Petitioner's Exhibit 3, Tr. 19) The contract price was $15,000. Except for the increase in the contract price, Kairy was led to believe that the terms and conditions of the second contract were substantially similar to the contract previously executed by the parties on March 7, 1983. However, Respondent reduced the extension of the carport wall to 10 feet and Respondent did not inform Kairy of this reduction. (Tr. page 48) The contract called for draw payments as follows: $4,000 as a downpayment/advance; $3,000 upon completion of slab and block walls; $1,500 upon completion of piping and tie-columns; $2,500 upon completion of partition and drywall; $3,000 upon completion of the roof, and $1,000 upon completion of the job. (Petitioner's Exhibit 3) Respondent subsequently applied for a permit from the City of North Miami. The City of North Miami denied Respondent's application because Respondent failed to comply with the Dade County licensing requirements. (Tr. pages 21-22) Although Respondent acted in the capacity of a general contractor, he (Respondent) requested that Kairy obtain a owner/builder permit. Upon applying for the owner/builder permit, the City cancelled the original permit for the carport enclosure. (Tr. page 94) Kairy obtained the owner/builder permit pursuant to Respondent's assurances the permit would be properly transferred to Respondent's contracting license. The City provided Kairy with a "hold harmless letter" for Respondent to execute. (Petitioner's Exhibit 4) Upon presentation of that letter by Kairy to Respondent, Respondent refused to execute the "hold harmless letter." (Tr. pages 22-24) Subsequently, Kairy and Respondent executed an addendum to the construction contract. The addendum involved changing the enclosures roof structure from shingle to barrel tile. This change involved a price difference of $1,950 and increased the total contract price to $16,950. (Petitioner's Exhibit 5, Tr. pages 31-32) The addendum was executed after completion of the tie-beam and tie- column portion of the construction project. Pursuant to the terms and conditions of the March 12, 1983 construction contract, Kairy provided Respondent with the following amounts: $4,000 as an advance/downpayment on March 21, 1983; ($2,500 under the March 7 contract plus an additional $1,500); $3,000 upon completion of the slab and block work; $400 for preparation of the original set of plans; $500 toward tinted windows; $1,500 upon completion of the tie-beam and tie- column; $1,500 as an advance on the barrel tile roof; and $1,500 as an advance upon the completion of the roofs. (Petitioner's Exhibit 6) Kairy paid Respondent a total of $12,400 on the total contract price of $16,950 or approximately 73 percent of the contract price. Kairy timely remitted to Respondent installment payments for the slab and block work, tie- beam and tie-columns and advanced Respondent $3,000 towards completion of the roof. During April, 1983, Respondent commenced construction for enclosing the roof structure. Respondent ceased all construction activity upon being informed (by Kairy) that he would no longer pay Respondent in cash. (Tr. page 44) Respondent refused to accept payment in any form other than cash and offered no explanation, reason or excuse to Kairy for the cessation of work on this project. Kairy offered several reasons for his refusal to pay contract installments in cash. First, Respondent refused to execute the hold harmless letter provided by the City of North Miami and Respondent failed to properly supervise the construction activities by, among other things, disappearing from the project for a period of approximately three weeks. Finally, Respondent requested additional advances on the contract while the project was not progressing as scheduled. (Tr. pages 28, 44-46) Respondent did not return to the construction site after Kairy refused cash payments. On July 20, 1983, Respondent's roofing subcontractor filed a claim of lien against Kairy's property in the amount of $1,210. (Petitioner's Exhibit 8) Respondent has failed to satisfy the claim of lien and Kairy is in the process of satisfying that claim. (.Tr. page 54) Respondent also failed to pay an electrical subcontractor for services provided in the amount of $965. (Petitioner's Exhibit 7) Again, Kairy is currently in the process of satisfying that debt and Respondent refuses to honor that obligation. (Tr. 57) Kairy reimbursed the plumbing subcontractor in the amount of $675 after Respondent's personal check was returned due to insufficient funds. (Tr. page 62 and Petitioner's Exhibit 9) On April 1, 1983, the City of North Miami Building Department inspected the foundation and slab. On April 18, 1983, the Building Department inspected the tie-beam and columns. On May 6, 1983, the City of North Miami Building Department performed a tin-cap inspection on the enclosure roof. The City of North Miami Building Department estimated the actual construction completed when Respondent left the project and determined that it was approximately 70 percent complete. Completed construction included the slab, foundation, walls and tie-beam. Little interior construction work had been performed and drywall and partition walls were only partially complete. Kairy has either expended or will be required to expend the following sums in connection with the contract with Respondent: $12,400 - the amount paid directly to Respondent; $1,210 - the amount of the roofer's lien; $965 representing the amount owed to the electrician; and $675 representing the amount Kairy paid the plumbing subcontractor for a total of $15,250. 4/ Although Respondent completed approximately 70 percent of the actual construction, Kairy will correspondingly be required to expend approximately 90 percent of the contract price over and above monies paid to Respondent to complete this project. DOAH CASE NO. 84-3202 On May 12, 1983, the City of Miramar issued William Borden an owner/builder permit for the construction of a four-bedroom, three-bath home to be located in Miramar, Florida. (Petitioner's Exhibit 8) Between May and October, 1983, the Bordens performed the site preparation necessary for pouring the building's foundation and slab. After observing Respondent's classified advertisement in a local flier, the Bordens contacted Respondent with regard to the construction of their home. (Tr. page 16) On November 11, 1983, Respondent contracted with the Bordens to provide certain contracting services relative to the construction of their home. The Bordens contracted Respondent to pour the foundation and slab, perform the block work, frame and pour the tie-beam and tie-columns. (Petitioner's Exhibit 3, Tr. pages 18-20) The Bordens were to complete all of remaining construction of their home) The contract price was approximately $16,810. On October 17, 1983, the City of Miramar issued William Borden an owner/builder permit. (Petitioner's Exhibit 7) William Borden was to install the rough plumbing prior to Respondent pouring the foundation and slab. (Tr. 33) Due to certain time constraints, Respondent offered to install the rough plumbing. On October 25, 1983, Respondent received $475 from the Bordens toward installation of the rough plumbing. Respondent failed to subcontract the installation of the rough plumbing and failed to obtain the necessary building permit. On November 8, 1983, the Bordens provided Respondent an additional $470 representing final payment for installation of the rough plumbing. (Petitioner's Exhibit 4) On November 1, 1983, Mr. Bill Lafferty, chief building and mechanical inspector for the City of Miramar, performed an inspection of the rough plumbing work performed for the Bordens by Respondent. Lafferty determined that Respondent had failed to install the rough plumbing in accordance with provisions of the South Florida Building Code as adopted by the Broward County Code. As a consequence, Lafferty required Respondent to remove and reinstall the rough plumbing in accordance with applicable building code provisions. On November 7, 1983, Lafferty reinspected and approved the rough plumbing as reinstalled by Respondent. (Tr. pages 51-55) Respondent reinstalled rough plumbing at the Borden residence during the first week of November, 1983. Respondent did not obtain a building permit prior to reinstalling the rough plumbing. On November 16, 1983, the City of Miramar levied against Respondent a fee totalling $163.45. Part of that levy included $63.45 for renewal of the building permit and reinspection fee, and the remaining $100 represented a fine against Respondent for failing to properly obtain a building permit. (Tr. pages 58, 64 and Petitioner's Exhibit 7) On November 10, 1983, Salvatore Jenco, structural building inspector for the City of Miramar Building Department, inspected and approved the footing slab for the Borden residence. Subsequently, Respondent poured the concrete slab and foundation. Respondent did not obtain the requisite building permit prior to proceeding with construction. Respondent could not properly proceed with construction pursuant to William Borden's owner/builder permit. On November 11, 1983, inspector Jenco reinspected the concrete slab and foundation as poured by Respondent. As a result of that inspection, Jenco ordered all construction activities to be stopped at the Borden project. Specifically, Respondent materially deviated from the architect's plans and specifications by failing to pour a monolithic (continuous) slab and foundation for the Borden residence. As result of that deviation, the structural integrity of the building was compromised. (Tr. pages 71-73) Construction activity at the Borden residence was halted approximately three weeks while the Borden's architect developed a new set of blueprints. After the City approved the revised blueprints, Respondent began laying blocks and framing the tie-beam. Subsequently, Respondent requested Sunshine Concrete Company to commence pouring the tie-beam. The concrete company requested payment in cash due to the fact that Respondent had previously tendered a check to Sunshine Concrete Company which was returned due to insufficient funds. When informed of the concrete company's demands, the Respondent ordered the company to cease pouring the tie-beam. Upon being informed the tie-beam required a continuous pour, Respondent left the construction site and the Bordens were required to directly reimburse the concrete company. Respondent abandoned the project and has not returned to the construction site. Respondent owes the Bordens approximately $4,696 in reimbursed expenses. (Tr. pages 40-42) Respondent's Defense In DOAH Case No. 84-1298, Respondent did not offer any testimony to refute or otherwise rebut the allegations set forth in the Administrative Complaint. Respondent refused to be placed under oath when he made statements as to his position in Case No. 84-3202.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's certified general contractor's license be suspended for a period of two (2) years. Additionally, Respondent shall pay to the Construction Industry Licensing Board an administrative fine in the amount of $2,500. However, if Respondent provides the Construction Industry Licensing Board with sufficient evidence indicating settlement and satisfaction of the existing disputes between Mr. Albert Kairy and Mr. and Mrs. William Borden, the suspension shall be reduced to one (1) year after which time it is recommended that his license be reinstated. RECOMMENDED this 8th day of May, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 May, 1985.
The Issue The issue is whether Respondent, Raylin Steel Erectors, Inc., employed persons in the State of Florida without obtaining workers' compensation coverage meeting the requirements of Chapter 440, Florida Statutes. If Respondent failed to obtain the required insurance, the subsequent issue is whether the penalty in the amount of $140,975.32, was properly assessed by Petitioner, Florida Department of Financial Services, Division of Workers' Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. The Division maintains records of all Notices of Coverage for workers' compensation reported to it. Insurers are required by law to report all Florida workers' compensation policies to the Division. Respondent is a Georgia corporation located in Adel, Georgia. Respondent is in the business of erecting pre- engineered metal buildings not exceeding two stories in height. Respondent, at all times involved in this matter, was engaged as a subcontractor to various general contractors for construction work performed in the State of Florida. All of the work performed in Florida for purposes of these proceedings was actually performed by sub-subcontractors of Respondent. Respondent testified that it did not use any of its own employees to perform work at any of the sites involved in these proceedings. Petitioner, based upon field interviews, determined that at least some of the employees working at Respondent's job site in Jacksonville, Florida, claimed to be employed by Respondent. Respondent had obtained workers' compensation coverage in Georgia which provided for out-of-state coverage for Florida under Section 3C of the policy, but no listed coverage for Florida under Section 3A. Four of the sub-subcontractors used by Respondent to perform work in Florida, Celaya Steel Co., DC Construction, Ronald Weeks, d/b/a RTW Construction, and JCB Steel Erectors, Inc., had "other states coverage" in force, including Florida, in Section 3C (but not 3A) of their workers' compensation policies. Two companies used by Respondent to perform work in Florida, Edward Leggett and Southern Steel Erectors, were not covered by the "other states coverage" provision of Georgia workers' compensation policies. On September 16, 2004, Edward Leggett, as a sub- subcontractor to Respondent, was engaged in the construction of a pre-engineered metal building located at 3615 Dupont Center, Jacksonville, Florida. The general contractor on this job was BEKKA Corporation. Allen DiMaria, Petitioner's investigator, observed the type of work being performed on the project, patch work on the roof. No steel erection, or any other type of work was observed being performed on this project. Respondent's workers' compensation code as its principal business is listed under sheet metal work, NCCI Code No. 5538. Petitioner admitted that this was the most appropriate code classification to describe Respondent's principal type of work. The type of pre-engineered metal buildings erected by Respondent's sub-subcontractors required various types of work. The first phase of the work is steel erection, also known as "red iron work." The next phase is erecting walls and performing various types of trim work involved with sheet metal. The third phase is roof work, and the final phase is trim work and any punch list work required to complete the project. Respondent's standard payment draw requests to its customer, the general contractor, follows a sequencing under which 25 percent is paid for steel erection, 50 percent for sheet metal work and trim out, and 25 percent for roofing. Respondent's sub-subcontractors are also paid in this same manner. Further, Respondent's sub-subcontractors, who all were out-of-state Georgia employers, generally provide per diem travel expenses to their employees and account for overhead and profit. On September 17, 2004, after conducting a CCAS database search which resulted in his finding no record of workers' compensation coverage for either Respondent or Edward Leggett, Mr. DiMaria issued a Stop Work Order and Order of Penalty Assessment on Respondent. The Order required Respondent to cease all business operations in Florida. After the Stop Work Order was issued, Mr. DiMaria sent a request for business records to Respondent. Linda Rowan, Respondent's secretary/treasurer, responded that Respondent had no employees doing any work at any job sites in Florida, and that all work was being performed by sub-subcontractors of Respondent. Mr. DiMaria then requested that Respondent send copies of any subcontracts, payment records, and insurance information regarding work performed in Florida by Respondent's subcontractors from 2002 to September 17, 2004, the date of the Stop Work Order. In response to this request, Ms. Rowan mailed copies of all subcontracts Respondent had with its sub- subcontractors, all payment records related to these contracts, and insurance certificates furnished by the sub-subcontractors. Because Respondent had no employees performing any of the work, it had no payroll records to send to Petitioner. Petitioner requested no business records from Respondent's sub-subcontractors to determine what actual payroll was performed on the jobs in question. Once the information was furnished to Petitioner, Respondent heard nothing further from Petitioner until the Amended Order of Penalty Assessment was issued in the amount of $150,598.05. Petitioner, on the eve of hearing, further amended the penalty assessment to the amount of $140,975.32. In calculating the further Amended and Final Penalty Assessment, Petitioner asserted that it utilized the total payments made by Respondent to its sub-subcontractors in lieu of any payroll records, as the calculation of gross payroll. The actual amounts paid to DC Construction on the BEKKA Corporation job, performed from June 18, 2004 to August 19, 2004, and from July 29, 2004 to September 23, 2004, were overstated by $5,518.00. The amount of assumed payroll for the work performed by Southern Steel from April 12, 2002 to April 30, 2002, was understated by $800.00, based upon the actual payments received. These assumed payroll amounts were then multiplied by the NCCI classification code rates for steel erection for all work performed by Respondent's sub-subcontractors in Florida during 2002, 2003, and 2004. That figure was then multiplied by 1.5 to arrive at the penalty assessment. Celaya Steel performed work in Florida between August 28, 2003, and September 30, 2003, for which it was paid $7,602.00, by Respondent. On a separate job, Celaya Steel was paid $7,000.00, for work performed between September 24, 2003, and September 30, 2003. These precise breakdowns by job performed by Celaya Steel are not included in the further Amended Stop Work Order and Penalty Assessment, but were included in the original Penalty Assessment dated October 14, 2004. After deducting amounts paid for equipment rentals, the cost of work performed by Celaya Steel after October 1, 2003, is $13,528.00. Southern Steel Erectors performed work as a sub- subcontractor of Respondent from April 12, 2002, to April 30, 2002, for which it was paid $7,300.00. Ronald Weeks, d/b/a RTW Construction, performed work on May 14, 2004, with a gross payroll of $1,420.00. JCB Steel Erectors, Inc., performed work from October 30, 2003 to December 04, 2003, with a gross payroll of $5,873.00. Based upon insurance certificates received from its sub-subcontractors, Respondent believed that its sub- subcontractors' workers were covered by workers' compensation insurance. Petitioner calculated its original and final Amended Penalty Assessments using Florida premium rates and the class code for steel erection only. In the Final Penalty Assessment, the penalty was revised slightly due to equipment charges that were offset against the sub-subcontract amounts so that the assumed payroll was calculated based upon actual payments received by the sub-subcontractors, not the original subcontract amounts, except as to DC Construction where the subcontract amount, not the actual payments made to DC on the BEKKA Corporation job were used. Celaya Steel started this job, was later replaced by DC Construction, which was further replaced by Edward Leggett which finished the remaining roof-patching work on the project and was paid $4,000.00 for its work.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Workers' Compensation issue a further and final Amended Penalty Assessment Order as follows: Edward Leggett. The gross payroll of $4,000.00 should be multiplied at the rate of 40 times the Roofwork NCCI approved manual rate of $46.17 per hundred, then times 1.5 for a revised final penalty of $2,770.20. DC Construction. The actual payments made to DC Construction were $43,321.58 which should be applied at the rate of 25 percent of the payment times the NCCI steel erection code 5059 rate, 50 percent of the payment times the sheet metal and trim NCCI code 5538 rate, and 25 percent of the payment times the roofing work NCCI code 5551 rate. This results in a revised penalty for the DC Construction work of $28,971.32. Celaya Steel Co. Only the amounts for work performed after October 1, 2003, $13,528.00 shall be applied for assessment purposes. Applying the appropriate codes as used for the DC Construction work (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing) yields a final revised penalty of $9,047.07. Southern Steel. No work was performed by Southern Steel Erectors after October 1, 2003. Accordingly, no penalty is to be assessed for any work performed by Southern Steel Erectors. Ronald Weeks d/b/a RTW Construction. Applying the same NCCI codes as applied to the work performed by DC Construction and Celaya Steel Co. (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing), yields a final revised penalty of $768.33. JCB Steel Erectors. Applying the same NCCI codes as applied to the work performed by DC Construction, Celaya Steel Co., and Ronald Weeks d/b/a RTW Construction (25 percent steel erection, 50 percent sheet metal and trim, 25 percent roofing) yields a final revised penalty of $2,883.73. The total revised penalties and assessments (Items 1-6 above) are $44,440.65. DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of October, 2005. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Allen P. Clark, Esquire Foley & Lardner, LLP One Independent Drive, Suite 1300 Jacksonville, Florida 32202 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact A draftsman named Ward approached respondent with plans which Mr. Ward told respondent he had been given by one W. J. "Jack" Harlan. Mr. Ward also told respondent that Mr. Harlan had said that the plans were for a standard steel "pre-engineered" Mitchel Building, which Mr. Harlan proposed to construct for D & D Machine Specialties, Inc. in Fort Myers, as an annex to an existing building. Respondent was given to understand by Mr. Ward that Mr. Harlan wanted respondent "to prepare a plot plan and foundation plan, [and a plan for an] electrical riser and . . . [to] copy . . . some details furnished by" Mr. Harlan. Respondent agreed to undertake the project. In accordance with respondent's instructions, Mr. Ward drafted four sheets of drawings. Respondent "checked [the drawings] . . . , made some minor changes and corrections and . . . signed them." (T65) These drawings came in as petitioner's exhibit No. l. The first of the four sheets contains a schematic riser diagram, an electrical floor plan and a plot plan. On this sheet is written "PRE-ENGINEERED METAL BUILDING BY MITCHEL." The second sheet contains a foundation plan and detailed drawings of columns. On the second sheet is written "SPECIFICATIONS COPIED FROM ENGR. DATA BOOK, AS PUBLISHED BY MITCHEL METAL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." The third sheet contains floor plans and drawings of the north, east, south and west elevations of the proposed structure. The fourth sheet contains a roof framing plan, a stress diagram, and wall and other structural details. On this sheet is written "SPECIFICATIONS COPIED FROM COMPUTER [sic] PRINT OUT, & ENGR. DATA BOOK, BY MITCHEL STEEL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." Respondent's seal and signature appear on each of the four sheets. The first sheet is dated February 23, 1977. Each of the other sheets is dated February 14, 1977. Mr. Harlan submitted all four sheets of petitioner's exhibit No. 1 to Fort Myers' Building and Zoning Department as part of his application for a building permit. Mr. Alfred J. Heinman, Director of Fort Myers' Building and Zoning Department, and others in the Building and Zoning Department who reviewed the drawings, had reservations about the stability and strength of rails proposed along either side of the planned structure to bear the weight of a movable overhead crane. Accordingly, the Building and Zoning Department denied Mr. Harlan's application for a building permit. Mr. Harlan never told respondent that his permit application had been denied. Instead, he engaged Jorge Zorilla, a professional civil engineer whose specialty is structural design engineering, to remedy the deficiencies in the drawings respondent had done. In examining petitioner's exhibit No. 1, Mr. Zorilla concluded that, if the building had been constructed in accordance with respondent's drawings, trying to lift with the overhead crane in an eccentric position, or even a strong wind, could have caused its collapse. Specifically, the connections between roof members and columns proposed in petitioner's exhibit No. 1 were not strong enough to resist lateral forces on the building; there was inadequate provision for the support of the overhead crane; and there was no bracing system between the columns to resist winds in an easterly or westerly direction. In Mr. Zorilla's opinion, respondent gave no consideration to forces that would have been exerted on the structure by the wind and also failed to consider the consequences of an eccentric crane load. As originally drawn by respondent, the plans did not meet the requirements of the Southern Building Code. Before redrawing sheet four of petitioners exhibit No. 1, Mr. Zorilla asked Mr. Harlan for any information he had "from the Mitchell Steel Building people." (T18) Mr. Harlan answered that he had none; that the proposed building was not a standard model; and that he had collected building materials from various sources. As reflected by petitioner's exhibits Nos. 3 and 4, Mr. Zorilla made several changes in sheet four of petitioner's exhibit No. 1, including doubling the number of joists in the area where the crane load would exist; increasing from 4" to 12" the height of plates welded to columns to support the crane girders; specifying that 6" x 1/4" plates be welded to the bottoms of the joists near the points of connection with columns; modifying plans for the corner columns; specifying that sway bars be included in two bays on both of the longer walls; and specifying larger angles for bridging. Mr. Ward, whom Mr. Harlan had engaged for the purpose, drafted the changes specified by Mr. Zorilla. When Mr. Zorilla saw Mr. Ward's first draft, he asked him to make certain changes. After Mr. Ward had accomplished the changes, Mr. Zorilla signed and sealed the revised sheet four. On the basis of the plans as revised, Fort Myers' Building and Zoning Department granted Mr. Harlan's application for a building permit. Respondent testified that he was not registered as a structural engineer, "that it was a little over . . [his] head," (T56) and that he had never intended that the plans he signed and sealed should be used by themselves. Respondent testified without contradiction that it was customary, in the case of "pre-engineered" buildings, for the structural engineering to be done by one engineer, while other engineers prepared electrical, air conditioning and other plans for the same structure. The foregoing findings of fact should be read in conjuction with the statement required by Stuckey' s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspended respondent's certificate of registration for sixty (60) days. DONE and ENTERED this 5th day of May, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Respondent's proposed findings of fact have been rejected as unsupported by the evidence. Petitioner did present evidence "as to its allegation" in the first specification of the administrative complaint. Taken as a whole, the evidence did establish that respondent knew or should have known that he had taken on a structural engineering task. Petitioner's proposed findings of fact have generally been adopted, in substance, insofar as relevant, except that the evidence did not establish whether or not the plans drawn at respondent's direction resembled "a Mitchell pre-engineer[ed] building"; and the plates specified by Mr. Zorilla were six inches by one quarter inch. COPIES FURNISHED: Ford L. Thompson, Esquire Suite 701, Lewis State Bank Building Tallahassee, Florida 32302 Stephen W. Buckley, Esquire Corner Main and Broadway Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER ================================================================= IN THE FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS OF THE DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, a State agency, Complainant, vs. DOAH CASE NO. 77-2224 CLARENCE L. KIMBALL, Registrant. /
The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent is, and has been at all times material hereto, a certified building contractor, a registered mechanical contractor and a certified air conditioning contractor in the state of Florida having been issued license numbers CB-CA09793, RM-0031246 and CA-C024348, respectively. At all times material hereto, Respondent's building contractor and air conditioning contractor licenses qualified George E. Bonsino and Associates, Inc., Jacksonville, Florida. In February 1984, Respondent contracted with Carl and Patricia Powers of 4530 Victor Street, Jacksonville, Florida for the construction of a room addition. The contract was presented to the Powers by Peter Stamires. Mr. Stamires was, at the time, acting as sales manager for George E. Longino and Associates, Inc. The contract price was approximately $13,000.00 and construction of the Powers' room addition was estimated to be completed by March 30, 1984. On March 20, 1984 Respondent received from Carl and Patricia Powers a payment of $6,850.00 on the contract. On May 4, 1984 Respondent received from Carl and Patricia Powers an additional payment of $5,000.00 on the contract. The contract called for a "dry-in room" only, i.e., the room was to be put to a stage where water would not penetrate it. The contract also included: (1) covering the existing asbestos shingles with a cut brick and stone veneer; (2) the installation of aluminum windows; (3) the installation of aluminum gables and eaves; (4) re-roofing the entire home; and (5) the installation of overhead lights, light switches and electrical outlets. Respondent's contract with the Powers contemplated that electrical work would be done, but did not include any plumbing. Respondent sub-contracted the Powers' project to two (2) individuals, Mr. Walker and Mr. Todd. Respondent did not know what type of license Mr. Walker or Mr. Todd held and was never shown a license by either individual. Mr. Walker agreed to obtain permits for the Powers' project, to submit building plans and specifications, and to request the mandatory building inspections. Neither the Respondent nor the sub-contractors obtained a City of Jacksonville building permit prior to commencing construction of the Powers' room addition. Neither Respondent nor the sub-contractors submitted building plans and specifications for approval by the, City of Jacksonville Building Department prior to commencing construction at the Powers' residence as required. Neither Respondent nor the sub-contractors requested the City of Jacksonville Building Department to perform any type of building inspections during the process of construction, as required. On June 11, 1984 Respondent obtained building permit no. 7048 from the City of Jacksonville Building and Zoning Inspection Division for the Powers' project. Shortly after construction commenced, the Powers became concerned with the quality of work being performed. Respondent, while at the project site near the end of March, told Mr. Powers that a building permit had been obtained for the project. However, at that time, no building permit had been obtained. Mr. Theron Brannan, a building inspector for the City of Jacksonville, became involved with the Powers' case when Mrs. Powers called in May 1984 and complained about ;he work being performed by Respondent. Mr. Brannan checked and found that no permit had been issued. He then went out and inspected the construction site. Mr. Brannan found that the walls were approximately 3 or 4 inches out of alignment and that the floor was spongy and needed repair. Major work would have been required to straighten the walls. In Mr. Brannan's opinion, the work was well below average and was of very poor quality. Electrical and plumbing work was performed at the Powers' project site. Ten (10) electrical outlets, six (6) overhead lights and six (6) light switches were installed. The electrical work also included a 220 volt outlet for a clothes dryer. Mrs. Powers is a housewife and was present during the time the electrical work was performed. The individual performing the electrical work told Ms. Powers that he worked for Respondent and was being paid on an hourly basis. The plumbing work performed at the Powers' project included: (1) installation of hot and cold water lines for the bathroom sink, which were tied into the existing water supply; (2) a water line to the toilet, and (3) a drain pipe from the toilet to the existing septic tank. The individual performing the plumbing work told Ms. Powers that he worked for Respondent on an hourly basis and that he was a licensed plumber. When Respondent was advised of the problems at the construction site, he immediately obtained the necessary permits and offered to correct some of the building problems. The Powers refused Respondent's offer to correct the problems because they were concerned as to whether the remedial measures proposed by Respondent were actually feasible. From an appearance standpoint, the measures contemplated by Respondent were not feasible. In April 1984, Respondent contracted with Glenn and Debora Blanchard of 521 Astral Avenue, Jacksonville, Florida for the construction of a room addition. The total contract price was $6,780.00. Respondent received $3,390.00 as a down payment on the contract; the balance was due upon completion. The contract called for the construction of a room addition between the existing home and the garage. The room addition was to be completed to the "dry-in" stage only. The contract also included re-roofing the entire residence. The Respondent sub contracted the Blanchard project to a person by the name of A. Rhoden. Mr. Rhoden agreed to obtain all permits, draw all plans and specifications and obtain all required inspections with the exception of the roofing aspects of the project. Neither Respondent nor the sub-contractor obtain ed a building permit prior to commencing construction at the Blanchard's residence as required. Neither Respondent nor the sub-contractor submitted building plans and specifications to the City of Jacksonville Building Department prior to commencing construction. Neither Respondent nor the sub-contractor requested the building department perform any type of building inspections during the process of construction In May 1984, Ms. Blanchard became concerned because the concrete slab appeared uneven and had developed a crack. She contacted the City of Jacksonville Building Department because she was concerned with the quality of the work being performed. On May 30, 1984 the City of Jacksonville Building Department and Zoning Inspection Division issued a stop work order on construction work being performed at the Blanchard residence. The Notice of Violation cited the failure to submit building plans and failure to obtain a building permit prior to commencing construction at the project site. On June 11, 1984 Respondent obtained building permit no. 7047 from the City of Jacksonville Building and Zoning Inspection Division for the construction work at the Blanchard residence. Such Permit was obtained after commencement of the project. Shortly after commencement of construction, Respondent met with Mr. Blanchard at the project site to discuss a few changes to the original plans. In late April, 1984, Respondent told Mr. Blanchard that a building permit had been obtained, when in fact, no building permit had been obtained. Respondent told Mr. Blanchard that the permit needed to be kept at his office. The construction of the room addition included the forming and pouring of a monolithic slab. The City building department inspects the excavation of the slab prior to the pouring of concrete. A tie-beam inspection is required after the foundation is poured and the masonry walls are erected. Neither inspection was performed nor requested. The Respondent told Mrs. Blanchard that two (2) inspectors had inspected the property, when in fact no inspectors had inspected the property because no building permit had been applied for at the time Respondent made such statement. Unless a building permit is obtained, the City is generally not aware that a construction project is being undertaken and, therefore, does not conduct building inspections. Lewis D. Franks, an expert in residential construction inspected the work done at the Blanchard's home on behalf of the City of Jacksonville Building Department. Several problems existed in regard to the Blanchard project. There was a large crack in the concrete which resulted from the settling of the southeast corner of the building. The settling of the southeast corner resulted from either an inadequate footing or none at all. Also, the roof rafters were not centered properly and were about fourteen (14) feet off. The Blanchard project was of very poor workmanship, the construction was not structurally sound, and the project failed in several respects to meet requirements of the City of Jacksonville Building Code. When Respondent found out that no permit had been obtained he promptly drew up plans and specifications and obtained a permit from the City of Jacksonville Building Department. The Blanchards, thereafter, refused to allow Respondent to continue working on the project. The roofing portion of the Blanchard project was sub- contracted by Respondent to Richard Davenport. Mr. Davenport holds a state license as a roofing contractor and a local occupational license. Mr. Davenport's sub-contract called for him to tear off the existing roof, carry off the rotten wood and put on a new roof. Respondent was not satisfied with the roofing job done by Mr. Davenport and failed to pay him for such roofing job. Thereafter, Mr. Davenport demanded payment from the Blanchards but they also refused to pay him. Mr. Davenport filed a Claim of Lien against the Blanchards' property. However, the Blanchards hired an attorney and the Claim of Lien was dismissed. Respondent's failure to pay Mr. Davenport was based on his good faith belief that the roofing job was not done in a satisfactory manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found guilty of failing to supervise the construction activities of the company which he qualified and incompetence in the practice of contracting as alleged in Count One of the Amended Administrative Complaint. It is further recommended that all other alleged violations contained in Count One of the Amended Administrative Complaint be dismissed. That Respondent be found guilty of failing to supervise the construction activities of the company which he qualified and incompetence in the practice of contracting as alleged in Count Two of the Amended Administrative Complaint. It is further recommended that all other alleged violations contained in Count Two of the Amended Administrative Complaint be dismissed. That Count Three of the Amended Administrative Complaint be dismissed, the Petitioner failing to introduce any evidence in regard to Count Three and requesting that it be dismissed. It is further RECOMMENDED that Respondent's building contractor's license be suspended for a period of 6 months and that an administrative fine in the amount of $500.00 be assessed. DONE and ORDERED this 30th day of October, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of October, 1985.
