Findings Of Fact The Department of Transportation, pursuant to its decision to procure certain sewer line cleaning equipment, issued an Invitation to Bid to potential vendors of such equipment. The specifications in that Invitation to Bid which are at issue in this proceeding concern the specified ability of the machine being proposed to vacuum gutters while being driven or, that is, in motion. The other specification at issue was that the machine had to be a standard production model with five of such machines in service for one year prior to May 1988. The sewer line cleaner specified had to have a nine cubic yard capacity. The bids were received, including that of Vac-Con, Inc. and Jet Vac Sanitary Service. The bid results were posted on June 3, 1988, noticing the Department's intent to award the contract for the nine cubic yard sewer line cleaner to Vac- Con, Inc. Jet Vac Sanitary Service timely filed a formal protest of that intended bid award on June 17, 1988. The Petitioner's formal protest was transmitted to the Division of Administrative Hearings and duly came on for hearing. The Petitioner is contending that the Vac-Con model V290 storm sewer line cleaner does not meet the specifications in the Invitation to Bid because it will not vacuum gutters while in motion in the configuration set forth in Vac-Con's published specifications for its standard models. It asserts, in conjunction with this argument, that the alternative configuration proposed by Vac-Con would in effect render this a nonstandard production model of which Vac- Con has not had five in service prior to May 1988, which would represent a departure from the bid specifications and thus result in a non-responsive bid. The Respondent, however, contends that the alternative configuration proposed by Vac-Con is merely an options package to an existing standard production model machine and thus is in conformance with the specification. The Respondent has been advised by Vac-Con that the V290 machine will perform as specified and that at least five machines have been so configured and have been in service for the required one year or greater period. It is stipulated that Jet Vac Sanitary Service was the next lowest bidder after Vac-Con and has standing to protest the Intent to Award. Jet Vac was a responsive bidder. It is also stipulated that the configuration of the model V290 depicted in Vac-Con's promotional material itself will not meet the specifications set forth in Respondent's Invitation to Bid. The dispute is whether the Vac-Con machine, as optionally modified, as proposed by Vac-Con, meets the specification concerning the machine being a standard production model. In response to the Invitation to Bid, Vac-Con, Inc. submitted a bid for its Vac-Con model V290. It accompanied that bid with a written statement of the model specifications which coincided with the specifications required by the Invitation to Bid. It specified, that is, that it would comply with the requirement that the vehicle be able to vacuum gutters while being driven in motion. Jet Vac in turn submitted a bid which was responsive, but it was not the lowest bid. Vac-Con, Inc., in other bids submitted in the past year as well as in its advertising literature, describes the V290 model of sewer line cleaner as one in which the vacuum compressor is driven by the truck engine, that is the engine which provides the motive power to the vehicle. In order to operate the vacuum compressor as described in that literature, the rear axle of the truck has to be disengaged, with the result that the unit cannot vacuum and drive at the same time. This configuration of the V290 model which has the vacuum being operated by the truck engine or chassis engine, is the normal type of unit offered by Vac-Con in its vehicle demonstrations and literature, as recently as one week prior to trial. In order for the V290 to comply with the bid specifications at issue, it must be reconfigured so that the vacuum compressor is run by an auxiliary engine and not the motive power engine. The power available to operate the vacuum compressors which vacuum trash from gutters and so forth, would be reduced from the chassis engine which, in the normal configuration of that model, operates the vacuum compressors. The reconfiguration whereby the vacuum compressors would be run off the auxiliary engine, and not the motive engine, would require a reversal of the V-belt drives used by the normal unit. This alternate configuration would be obvious to the casual observer. The intent of the term "standard production model" in the specifications at issue is to ensure that a machine purchased will have ready availability of manufacturer's replacement parts out of stock. This serves to prevent the purchaser from having to do development work on new models which are not in standard production runs and do not have inventories of spare parts in the manufacturer's stock as yet. Because the alternate configuration of the unit, whereby it would vacuum while moving, running its vacuum equipment off of its auxiliary engine, requires new engineering and reevaluation of the power of the V290's auxiliary motor, the specification language requiring a "standard production model" and requiring that five such units be operational in the field, requires in this instance that five units in the alternate configuration at issue be found to have been in satisfactory field service for one year. The written description submitted by Vac-Con, Inc. in response to the bidding documents, describes a machine which complies with the specification requiring the ability of the machine to vacuum while it is in motion. That description was specially prepared for purposes of this bid. Indeed it is not a machine represented, at the time of the bid, in the company's advertising literature, catalog data or other published brochures and like sources of information in order to verify that indeed Vac-Con did have five units in the alternative configuration in satisfactory service. The Department's representative, Mr. Burt, telephoned individuals whose names had been supplied him by Vac-Con as being persons who could verify that the alternative, which could vacuum in motion with the vacuum blower run off the auxiliary engine, was indeed in service. Using these names supplied him by Vac-Con and names of persons some of those people in turn gave him, who had such altered machines operating in satisfactory service, Mr. Burt telephoned each of the individuals whose names had thus been furnished by Vac-Con and its customers. He thus confirmed that there were indeed at least five units in service in the field, for at least one year, which had the ability to vacuum gutters while in motion, with the vacuum equipment being operated by the auxiliary engine on the machine. The Department has a policy of relying upon the representations of its suppliers. It does not inspect each piece of equipment before it writes a purchase order after awarding a bid. It instead reserves the right to reject any piece of equipment that does not meet specifications, after purchase. The Department does not wish to get into an adversary relationship with its suppliers and, in turn, vendors typically do not want an adversary or unfavorable relationship with the Department and do not want future disqualifications from bidding based upon any lack of integrity or misrepresentations in responding to bid specifications. Accordingly, the representations made on the bidding document have historically been quite accurate and have a high degree of probability of reliability. Hence, the Department has not, in the exercise of its discretion, followed a policy of physically inspecting each piece of equipment and independently verifying its existence or capabilities. It rather has effectively, in the past, relied upon the vendor's representations regarding the capacities or capabilities of equipment. In fact, the Department has neither the staff nor the time to make any further pre-award investigations, especially due to the nationwide market and indeed, to some extent, international market, in which it seeks to procure equipment of all sorts. In any event, being satisfied that the equipment would perform as represented and verifying that at least five such configured machines were in active field service for a year or more, the Department concluded that, in the exercise of its discretion, that the specifications had been adequately responded to and that the award should be made to Vac-Con as lowest, most responsive bidder. Insufficient proof to the contrary was offered at the hearing.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered awarding the contract for Florida DOT Bid Number MY3188B5 to Vac-Con, Inc. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. P. MICHAEL RUFF 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 8th day of December, 1988. COPIES FURNISHED: Ray Heath William B. Singleton Jet Vac Sanitary Services Post Office Box 186 New Smyrna Beach, Florida 32070 Bruce A. Campbell, squire Senior Litigation Attorney Office of General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Kaye N. Henderson, P.E., Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part: Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules. Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit. DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida. DIANE CLEAVINGER 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 4th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Stephen C. Bullock P. O. Box 447 Jacksonville, FL 32201 Thomas I. Mayton, Jr. Assistant General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Frederick L. Koberlein P. O. Drawer 2349 Lake City, FL 32056-2349 Virginia B. Wetherell, Secretary D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Kenneth Plante General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled, the following relevant facts are found. Bradford Clough, Respondent, is a registered pool contractor who holds license No. RP 0031551, which license is current and active. Respondent was first licensed on December 6, 1977, as qualifier of Aqua-Vac Self Clean Swim Pools. (Petitioner's Exhibit 1.) Arnold Verway has been the Building Director for Charlotte County since May 8, 1978. As Building Director, Mr. Verway is in charge of receiving and investigating complaints filed by homeowners against contractors licensed by the Charlotte County Building Board. In this regard, on October 5, 1978, the Charlotte County Building Board listened to two complaints which had been filed with the Department against Respondent "for not fulfilling his contract and for jobs done in an unworkmanlike manner . These complaints were filed by Mr. and Mrs. Phillip J. Greulich and Mr. and Mrs. George Beveridge, of Port Charlotte. After discussion, the Board sent formal notification to Respondent to attend the Board's next regular meeting in order to allow him an opportunity to present any defense respecting the above referenced complaints. Respondent was notified by certified letter dated October 13, 1978, return receipt requested. (Petitioner's Exhibit 2.) At the Board's meeting on November 2, 1978, complainants George Beveridge and Phillip Greulich restated their complaints which had earlier been made to the Board at its October 5, 1978, meeting. Respondent had not resolved the complaints to the satisfaction of complainants as of the date of this hearing. Respondent did not appear at the Board's November 2, 1978, meeting. The Board suspended Respondent's certificate of competency "until such time as he demonstrated to the Board that he had rehabilitated himself and was thus eligible and capable of working in Charlotte County". (Petitioner's Composite Exhibit 3.) The Petitioner has reviewed the disciplinary action taken by the Charlotte County Building Board. (Testimony of Petitioner's investigator, John Viking.) RESPONDENT'S DEFENSE As stated, Respondent did not appear at this hearing or at the hearing before the Charlotte County Building Board, despite proper notice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's registered pool contractor's license, RP 0031551, be REVOKED RECOMMENDED this 30th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 6, 2009, the Amended Order of Penalty Assessment issued on March 11, 2009, and the Second Amended Order of Penalty Assessment issued on October 15, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the Amended Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-059-D7, and being otherwise fully advised in the premises, hereby finds that: 1. On March 6, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On March 6, 2009, the Stop-Work Order and Order of Penalty Assessment was served by personal service on CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 11, 2009, the Department issued an Amended Order of Penalty Assessment in Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Amended Order of Penalty Assessment assessed a total penalty of $23,054.38 against CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Amended Order of Penalty Assessment included a Notice of Rights wherein CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On March 11, 2009, the Amended Order of Penalty Assessment was served by personal service on CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 11, 2009, CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE signed a Payment Agreement Schedule for Periodic Payment of Penalty in Case No. 09- 059-D7. A copy of the Payment Agreement Schedule for Periodic Payment of Penalty is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On March 11, 2009, the Department issued an Order of Conditional Release from Stop-Work Order in Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Order of Conditional Release from Stop-Work Order is attached hereto as “Exhibit D” and incorporated herein by reference. 7. _ On March 27, 2009, CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE filed a Petition for Formal Hearing Under Sections 120.569 and 120.57 with the Department. The Petition for Formal Hearing Under Sections 120.569 and 120.57 was forwarded to the Division of Administrative Hearings on April 13, 2009, and the matter was assigned DOAH Case No. 09-1841. 8. On October 15, 2009, the Department issued a Second Amended Order of Penalty Assessment in Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Second Amended Order of Penalty Assessment assessed a total penalty of $5,599.61 against CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 9. On October 16, 2009, the Department filed an Unopposed Motion to Amend Order of Penalty Assessment. The Administrative Law Judge entered an Order on October 19, 2009, which granted leave to amend the order of penalty assessment and filed for record the Second Amended Order of Penalty Assessment. A copy of the ‘Order is attached hereto as “Exhibit F” and incorporated herein by reference. 10. On November 2, 2009, CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE filed a Notice of Voluntary Dismissal with the Division of Administrative Hearings. Subsequently, on November 4, 2009, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department for final agency action. A copy of the Order Closing File is attached hereto as “Exhibit G” and incorporated herein by reference.
The Issue In this disciplinary proceeding, the issues are: Whether Respondent committed the violations alleged in the Administrative Complaint issued by the Petitioner; and Whether disciplinary penalties should be imposed on Respondent if Petitioner proves one or more of the violations charged in its Administrative Complaint.
Findings Of Fact Respondent, Brian Vincent Burns ("Burns"), at all times material to this matter, was a certified general contractor subject to the regulatory jurisdiction of the Petitioner. Burns was first licensed on October 26, 1981. Petitioner issued Burns license number CGO 020464. Burns' license expires on August 31, 2012. Action Restoration Inc. ("Action"), is and was, at all times material in this matter, the company where Burns is qualified. On October 24, 2007, Brian Burns-Action Restoration entered a Contractor Agreement ("Contract") with owner, Donnell Bryant, to construct a bathroom addition at Bryant's residence located at 3314 NW 23rd Court, Lauderdale Lakes, Florida 33311. Burns admitted at the hearing that the Contract failed to include any written disclosure statement explaining consumer's rights under the Florida Homeowner's Construction Recovery Fund. The Contract provided a draw schedule detailing the amount of the payment and at which points during the project payments were to be made to Action. The total contract price was $36,000. Per Bryant's Contract, Bryant paid the first draw of $6000.00 down at contract signing and Action started the job. During the job, Burns followed the critical path method. The method consisted of each step of the job being completed before the next could take place because each built upon the other. Action applied for a permit to build the bathroom addition on the house under Burns' contractor's license and became the contractor of record for the project. Action began the job in November 2007. It included excavating, obtaining the soil test, forming up the plywood to form the concrete, putting the rebar in, and pouring. On November 26, 2007, Bryant paid Action $7,250 as draw two when the footing was completed. The next step of the project was the block. Burns hired three workers to pour the concrete block. On or about December 20, 2007, Action put the truss anchors in the wet concrete. On or about December 21, 2007, Action completed the tie beams and was paid $8000.00 for draw three of the contract. At some point, Burns and Bryant agreed to change the trusses to make them more energy efficient and structurally sound for windstorms. The design change delayed the job being finished by the deadline. During December 2007, there was a period when Burns did not return Bryant's phone calls. Bryant was very anxious for the bathroom addition project to be completed and became angry at Burns when he couldn't reach him. Bryant thought Burns had abandoned his job when he didn't see Burns from around the Christmas holiday until after the new year. After the new year, in January 2008, Bryant met with Burns and a third party, Walsh. At the meeting, Bryant determined that Walsh was the foreman for Action who oversaw the work. Walsh never worked for Burns or Action and has never been paid by either. Burns had only met Walsh in 2007 and worked on one previous project with him. Burns knew Walsh to be a mason. From the meeting, Bryant understood that the initial contract work had been transferred to Walsh to complete the bathroom addition project Action had contracted for originally. As a result, Bryant stopped paying Burns and agreed to pay Walsh the remaining sum of $14,000.00 on the contract. After the meeting, Burns continued to work on the Bryant contract off site. He worked to get the new trusses design approved so that the work could move forward at the residential site. Around January 17, 2008, Burns took the new trusses design to the truss shop professional engineers to do the drawings. After approval, Burns took the design to the architect, which was approved on February 1, 2008. Then, Burns processed the drawing though the City of Lauderdale, which approved them on February 18, 2008. After approval by the City of Lauderdale, Burns called Bryant several times, and Bryant never returned his call or responded. Burns never returned to the Bryant residence to work on the job because he thought a new contractor had been hired to complete the job in Action's place. Action had only completed 50% of the job on the contract at the time. Plumbing, electric, duct work, and stucco were left to be done for the bathroom addition to be completed. During the period when Burns was getting the new trusses design approved, Bryant paid Walsh $4000.00, with check number 5761 as a draw, on February 15, 2008. The Contract was amended and stated, "$Total owe $14,000-$4000.00 2/15/08>New Balance $10,000" Walsh's signature was by the total with "pd 5761 2/15"1 Burns admitted at hearing that Action was still the contractor of record because the permit remained open for the project in his name. Burns said, "I made an error in judgment in not going to see to it that it was closed out." Walsh continued to work on Bryant's bathroom addition and got paid monies until June 2008. As Walsh completed portions of the job, Bryant paid him the following: $800 on April 18, 2008, for the wall and tile; $3,500 on June 3, 2008, for the construction of the bathroom; and $325 on June 9, 2008, for the stucco for the bathroom. Walsh also was paid for other construction work beside the bathroom addition for Bryant. Bryant never heard from Walsh again after paying him $325.00 with the June 9, 2008, check. He contacted him numerous times to no avail. The job was not completed. On December 30, 2008, Bryant signed a contract with Complete Property Repair to complete the bathroom addition Action had started. The contract amount was for $36,800. The contract included redoing some of the previous work completed by Action and some upgrades including a two-person Jacuzzi and travertine rock instead of tile. The Charges: In Count I, Petitioner charges Respondent with abandoning a construction project in which the contractor is engaged or under contract as a contractor in violation of section 489.129(1)(j), Florida Statutes. In Count II, Petitioner charges Respondent with failing to include a written statement explaining the consumer's right's under the Florida Homeowners' Construction Recovery Fund in the contract with Donnell Bryant in violation of Section 489.1425(1)(d)1.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order that: (a) finds Respondent guilty as charged in Count I of the Administrative Complaint, imposing as a fine of $2,500, and placing Burns' license on probation for a period of one year; (b) finds Respondent guilty as charged in Count II of the Administrative Complaint, imposing a fine of $250.00; and (c) not imposing any restitution since it was not proven in this matter at hearing. DONE AND ENTERED this 29th day of March, 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 29th day of March, 2011.
The Issue Should Petitioner fine Respondent for using contaminated spoil from the previous septic system to cover a new drainfield being installed?
Findings Of Fact Petitioner issues permits for the construction, installation, modification, or repair of onsite sewage treatment systems in accordance with Section 381.0065, Florida Statutes. Those repairs are conducted by septic tank contractors as qualified and registered by Petitioner, with the expectation that the registrants shall be subject to ethical standards of practice in their business as established by Petitioner's rules. See Section 489.553(3), Florida Statutes. Respondent, whose address is Post Office Box 390073, Deltona, Florida 32738-0073, is registered by Petitioner as a septic tank contractor. Respondent does business as Alpha Environmental Services. Respondent contracted with a customer at 1019 Pioneer Drive, Deltona, Florida to replace an onsite sewage treatment and disposal system at that address. Petitioner issued a permit for the work related to the septic system. Leila Baruch, then of the Volusia County Florida Environmental Health Agency, certified by Petitioner in inspecting septic systems, inspected the site before the work was performed. On February 18, 1999, Ms. Baruch returned to the site for the purpose of examining the "easy way" drainfield which Respondent had installed over the natural soil at the bottom of the replacement system. The easy way drainfield is a system of pipes surrounded by pieces of styrofoam. At the time of this inspection, the cover that was to be placed over the top of the drainfield had not been arranged. Ms. Baruch observed the old contaminated material that had been excavated from the failed system (the spoil) located to the side of the new drainfield. The new drainfield had been left uncovered to allow the inspector to observe its placement depth. As was the custom, the Volusia County Environmental Health Agency approved the installation of the drainfield concerning its relative depth and a call was made from Ms. Baruch to Respondent's business indicating that it would be acceptable to cover the drainfield following the more recent inspection. By this contact, it was not intended to grant permission to cover the drainfield with the spoil that had been removed from the failed system. This call to Respondent's business was made on February 18, 1999. Later on February 18, 1999, Ms. Baruch spoke with Respondent. This contact was based upon remarks that had been made to Ms. Baruch by the customer homeowner during Ms. Baruch's inspection of the site earlier on that date. The customer's remarks were to the effect that she understood that Respondent intended to use the spoil removed from the original septic system to cover the new system. In her conversation with Respondent, Ms. Baruch reminded Respondent that Respondent could not use the spoil to cover the new drainfield. In addition, Ms. Baruch read from Rule 64E-6.015(6), Florida Administrative Code, concerning the prohibition against the use of spoil material in covering the new drainfield. Ms. Baruch returned to the job site two or three days later and observed that the spoil material from the failed septic system had been used to cover the new drainfield. Respondent was responsible for the placement of the spoil material as a cover for the new drainfield. This condition in which the spoil material had been placed over the new drainfield was also observed by Scott Chambers of the Volusia County Environmental Health Agency, who is registered as a sanitarian with the Florida Environmental Health Association and certified by Petitioner for inspection of onsite sewage and disposal systems. As a consequence of the findings made by the inspectors, Petitioner cited Respondent for violation of Rule 64E-6.015(6), Florida Administrative Code, and seeks to impose a fine in accordance with Rule 64E-6.022(1)(p), Florida Administrative Code. Respondent's contention in his testimony that the spoil material was not placed immediately on the new drainfield is rejected. A substantial portion, if not all, of the new drainfield was covered by the spoil removed from the failed drainfield.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds Respondent in violation of Rule 64E-6.015(6), Florida Administrative Code, and imposes a $500.00 fine in accordance with Rule 64E-6.022(1)(p), Florida Administrative Code. DONE AND ENTERED this 17th day of November, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael Jedware Post Office Box 390073 Deltona, Florida 32738-0073 Angela T. Hall, Agency Clerk Department of Health Bin A02 CHARLES C. ADAMS 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 17th day of November, 1999. 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner holds Adult Congregate Living Facility License No. S-0464- 0131-R, issued by Respondent, the effective date of which license is July 14, 1979. Petitioner's license expires on July 13, 1980. Petitioner has located in its food preparation area a double compartment, stainless steel sink equipped with hot and cold running water. There is not, however, a separate lavatory in the food preparation area for the specific purpose of the washing of hands. Petitioner's facility includes two lavatories within 18 feet of the food preparation area. However, these two lavatories are outside the food preparation area proper. One of the lavatories is located in an adjacent hallway, and the other is located in an adjacent bathroom. Petitioner's facility was licensed initially after the adoption of Chapter 10A-5, Florida Administrative Code, and is, therefore, a "new establishment" subject to regulation under Chapter 10D-13, Florida Administrative Code.
Findings Of Fact Petitioner, Frank A. Caluwe, Jr., was employed on a noncontractual basis by Respondent, South Florida Water Management District, during the period from April 8, 1974 through August 4, 1982. From August, 1981 until his termination, Caluwe held the position of water management engineer III. At all times relevant hereto, Richard A. Rogers, director of the Resource Control Department, was overall supervisor or department head. Charles Alan Hall served as his direct, day-to-day supervisor. Petitioner transferred into the Resource Control Department in 1977. He was eventually promoted to a supervising professional engineer I class in 1979 by Rogers and Hall. Caluwe's job evaluations received in evidence as Petitioner's Exhibit 17 reflected outstanding and excellent ratings and included such glowing descriptions of his work performance as "excellent" and "well organized", and as having "a very good handle on all phases of the work". He received an excellent rating from Rogers and Hall as late as November, 1981. Rogers first began experiencing what he described as "difficulties" with Caluwe around 1980 when Caluwe went to lunch with several of his subordinates and did not return to work the rest of the afternoon. He did not take leave for his absence. Although Rogers claimed the employees were on a "drinking spree," this was not confirmed. Caluwe did not receive any disciplinary action for this "incident", although several months later Hall expressed displeasure with his absence. There was no evidence that any of the other employees in the group received any type of oral or written disciplinary action for their absences. Several other "problems" occurred during his employment tenure including unsuccessful attempts in 1980 to utilize law books at the agency's law library for personal use, admonishments for having too many incoming personal calls on his telephone during office hours and discussing nonworking matters with other employees, "negative" comments to two subordinates during a 1981 intra-agency election, and an alleged failure to return a long-distance telephone call to someone seeking information. However, no formal disciplinary action was taken against Petitioner for any of these actions, and his personnel file reflects no written comments. He also sued the agency twice, once in 1977 over an insurance claim, and a second time in 1980 concerning a cash award he claimed was due for making a suggestion. However, this action did not result in any written or oral warnings from his superiors. In May, 1981, Hall, Rogers and Caluwe met to discuss a transfer from a supervisory position (supervisor of water permit section) to a water management engineer III, which was a staff position. Although Caluwe admitted he was "burned out" in his supervisory role, he protested being demoted to a staff position and requested he be given an engineer IV slot. Notwithstanding his request he was demoted to the lower position. On March 17, 1982, an annual agency meeting was held at which time the agency executive director spoke to all employees. Prior to that time an undated memorandum was posted on the agency's bulletin board "urging" all employees to attend. Another memorandum dated March 1, 1982, which rescheduled the meeting to another date, simply advised members of Caluwe's department when the talk was to be held, but made no mention regarding attendance. Caluwe did not attend the meeting because he did not consider it to be mandatory. He based this conclusion upon the fact that the memorandum urged vis a vis required attendance, and because other employees had missed the meeting in prior years. He conceded, however, that it was "implied" from the memorandum that he attend the meeting. Respondent construed the memorandum to mean that attendance was compulsory, and that "everybody (was) expected to attend." Whether this specific meaning was ever conveyed to all employees, including Caluwe, before the meeting was not disclosed. During the annual agency meeting Caluwe remained working in his office. While there, an unidentified member of the public approached a temporary receptionist seeking information concerning a problem. The receptionist in turn went to Caluwe seeking his aid in responding to the inquiry. Caluwe responded, "I don't know. That's not my job. Pat Gleason's group handles that." Out of "curiosity", the receptionist reported his comments to a department head, who in turn told Rogers. Neither the receptionist nor the member of the public were identified, and neither appeared and testified at the final hearing. Whether or not the receptionist suffered "abuse" as a result of this as the agency claims was not confirmed. Rogers, Hall and Caluwe met on March 18 concerning his absence from the annual meeting and the "incident" with the receptionist. On March 22 Caluwe was given a written warning and assigned 25 disciplinary points for being guilty of a Category 2e offense under the agency's Corrective Action-Procedure Index and Corrective Action-Policy. The Index and Policy "defines appropriate corrective actions for resolving performance problems and violations of rules of conduct" by agency employees. In short, it represents the agency's written code of conduct for employees. A 2e offense is defined therein as a "(f)ailure to follow authorized instructions." In conjunction with the written warning, Caluwe was also given a memorandum prepared by Rogers on March 19 which explained in greater detail the conduct that precipitated the disciplinary action. In the memorandum Rogers referred to a number of things which prompted the disciplinary action, including the "incident" with the receptionist, the missed meeting, and Caluwe's apparent use of the telephone for personal use during the meeting as reported by the temporary receptionist. However, since the 25 points were given to Caluwe for failing to follow authorized instructions, it is found that disciplinary action was taken because he failed to attend the annual meeting. On March 29, 1982, Caluwe wrote a fourteen-page letter to Rogers giving his version of what occurred on March 17, and explaining in great detail other "incidents" that had occurred during the preceding eighteen months, Attached to the letter were 23 exhibits. Among other things, Caluwe accused Hall and Rogers of "improper conduct and abuse of authority" in handling the other incidents that had previously arisen. He also criticized their ability to manage and communicate with employees. The letter indicated that copies of the same were being mailed to each member of the agency's governing board, its Executive Director, Deputy Director, and Records Clerk, and an outside attorney. Rogers accepted the letter as merely being a response to his memorandum of March Caluwe was not disciplined for this action. On March 31, 1982 Caluwe wrote a two-page letter to the members of the governing board of the agency and enclosed his March 29 letter and exhibits previously sent to Rogers. In his March 31 letter, Caluwe stated, among other things, that management "occupie(d) a position of trust", that it had "breached this trust", that it "rule(d) by intimidation and fear and not in the spirit of cooperation", and urged the board members to conduct an independent investigation of his "allegations". A copy of this letter was also furnished an outside attorney. On May 13, 1982 Caluwe sent another letter to the members of the governing board in which he inquired as to the status of the investigation he had called for in his letter of March 31. Caluwe also raised allegations concerning the agency's general counsel, and claimed the general counsel had "used sick leave for purposes other than for which it was intended (and) falsified his bi-weekly time reports and received pay and benefits for periods he was absent from work", and that the problem was created because his leave slips had been approved by the agency's deputy executive director. That complaint is now the subject of a Florida Commission on Ethics proceeding. Caluwe had previously brought this subject to Rogers' attention sometime in 1980. There was no evidence his to the reaction, if any, by the members of the governing board to this letter or the one previously sent on March 31. Caluwe did not furnish his supervisors a copy of the letter but did copy the records clerk of the agency. Neither Rogers nor the agency personnel director received copies of the same until late July, 1982. In June, 1982 Caluwe contacted reporter for the Miami Herald to disclose the fact that the chairman of the agency's governing board had been involved in selling insurance to the board. On June 22, 1982 outside counsel for the agency wrote the agency's personnel director telling him, among other things, that it would call the director the next day concerning Caluwe and provide him "with language to be included in a letter of termination." It also referred to a need to review in detail "SFWMD's termination, grievance, and personnel policies to make sure that Caluwe's discharge, and the procedures used to implement the discharge, comport with due process." At this point, then, the agency had decided to terminate Caluwe. On July 21, 1982 Caluwe again wrote a letter to the members of the governing board. The text of the letter is set out below: To members of the Governing Board of the South Florida Water Management District: You are to be congratulated for your unity in not addressing controversial topics. It's an unfortunate situation when special interests are put ahead of the public trust that has been vested in you. The only reasonable conclusion that I can reach is that you condone poor management and theft. Perhaps some of you have committed acts similar to these and that's why you cannot afford to get involved. Well you are involved! It's satisfying to note the courts have held directors personally liable in civil actions and that penalties are not limited to compensatory damages but that punitive damages can be assessed. It's also interesting to note that you may be found culpably negligent in permitting acts like these to occur. Since you have been unwilling to do your own house cleaning, I have decided to help you in this matter. I think it would be an excellent idea if the citizens of South Florida had an opportunity to see how the South Florida Water Management District has acted in favoring special interests. When this happens you will not honestly be able to say, "we didn't know". One member of the Board responded by letter dated July 23, 1982 that she considered it inappropriate for Caluwe to write directly to board members and instructed him to use channels that were provided for handling complaints. She added that Caluwe's letter struck her as being "offensive". The letter made no direct reference to Rogers and Hall, and they were not furnished a copy. However, on July 26 Rogers was given a copy of the letter. On July 30, 1982 Rogers sent Caluwe a memorandum in which he informed Petitioner that his employment was being terminated at 5:00 p.m. on August 4, 1982, and not to report to work after July 30. In brief, the reasons given for Caluwe's termination were (a) his "uncooperativeness shown a co-worker" on March 19, and his "failure to respond to a request for information from a member of the public", which collectively constituted a 2e offense for which he was previously assigned 25 points on March 19, 1982; (b) his letter to Rogers on March 29, 1982 which alleged poor management, illegal activity and unfair treatment to Caluwe, and which "personally attacked and insulted Charles Hall and (Rogers)"; (c) his letter of July 21 to the board which contained "inflammatory, threatening, and abusive language" and which constituted Category 2h and 3a offenses for which he received 75 points in total, and an additional 25 points which was given for the same letter by virtue of Caluwe's "failure to follow promulgated grievance and complaint procedures'; 3/ (d) the accumulation of a total of 125 points since March 19 which was in violation of Section E.1.d. of the Corrective Action Policy; and (e) "actions" which interfered with Rogers' ability to maintain internal discipline", made it impossible to work with (Caluwe)", made it "impossible to transfer (him) to a different Department", which "interfered with (his) performance of assigned duties", and which showed a "tendency on (his) part to make untrue and misleading statements." A Category 2h offense is defined in the Policy-Index as the "(u)se of abusive language to a co-worker" while a Category 3a offense is defined as the "(u)se of abusive or threatening language to the public, or use of threatening language to a co-worker." Category 2e offenses carry the imposition of 25 points for each violation. Fifty points are assigned for a violation of a Category 3 offense. Section E.1.d, of the Policy-Index provides that "(a) total of 100 points in effect may be cause for termination." The Policy-Index requires that "(c)orrective action shall be taken as soon as possible, but not more than five working days from the time the supervisor becomes aware of the incident." The memorandum of July 30, 1982 was followed by a letter to Caluwe on August 5 from Rogers which confirmed that his employment had been terminated. The letter also instructed Caluwe on the time limitations for filing a request for an administrative hearing. Thereafter, a timely request for a hearing was filed. The agency adopted an "Employee grievance Procedure" on July 15, 1977. Its purpose was to allow all employees the opportunity to quickly and fairly resolve a grievance." The Procedure provides a specified procedure for hearing and resolving various types of complaints from employees, including a hearing by an Employee Relations Committee (ERC), a further review by the unit manager or department director, a second hearing by a Grievance Review Board, and a final decision by the agency's executive director. According to the agency's personnel director, the agency has fired employees in one of two ways in the past: (a) when the employe has accumulated more than 100 disciplinary points under the Policy-Index, and (b) when the employee has committed certain acts, irrespective of the Policy-Index. Thus, it contends the agency may, at its discretion, determine whether to terminate an employee by assessing points under the Policy-Index or by merely giving notice to the employee even though he has accumulated no points under its written code of conduct. Even though an employee has accumulated over 100 points, the agency may not necessarily fire an employee. For example, on one occasion an employee accumulated 135 points but was not fired. In the case at bar, the agency considered Caluwe's 125 points to be incidental to his termination, and viewed his supervisor's inability to work with him, his letter writing activities and prior "incidents" to be the major concern and basis for the termination. Whether the District had a policy of terminating an employee whenever his actions made it impossible to transfer him to another department or whenever a supervisor could not work with an employee was not disclosed. It was also not disclosed whether all employees, including Caluwe, were aware of such policies, and the ramification for violating the same. There was no evidence as to the reason for such policies, the types of proscribed conduct within each policy, and the authority for adopting the same. Caluwe blamed his firing primarily on the fact that he had prompted an investigation of the agency's general counsel, who was a long-time District employee. He acknowledged he failed to use the Employee Grievance Procedure when he wrote directly to the members of the governing board, but claimed the ERC was ineffective in dealing with management problems. Caluwe did not dispute that he missed the annual meeting, and wrote the letters in question; however, he contends they do not justify the disciplinary action imposed by the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that all charges against Petitioner be dismissed except for one Category 2e offense for which 25 points should be imposed. It is further RECOMMENDED that Petitioner be reinstated in the position of water management engineer III retroactive to August 4, 1982 and that he be given full back pay between that date and the date of reinstatement. DONE and RECOMMENDED this 8th day of June, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER 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 8th day of June, 1983.
