The Issue The issue is whether Respondent should correct a health violation and have a $500.00 fine imposed for violating an agency rule and statute, as alleged in the Citation for Violation issued by Petitioner on December 22, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves an allegation that Respondent, Steve DeLuca, violated an agency regulation and statute by making repairs to a drainfield on property located at 1444 East New York Avenue, Deland, Florida, without obtaining the necessary permits from the Volusia County Department of Health (Health Department). That department is under the direction and control of Petitioner, Department of Health (Department). Respondent denies the charge and, as clarified for the first time at hearing, contends that the repairs were minor in nature and thus did not require a permit, no authorization was given to the excavation firm which performed the repairs, and the Citation was not issued to the actual owner of the property. On October 29, 1999, William N. VanderLugt (Vanderlugt), a Health Department environmental specialist, received a complaint regarding a septic tank repair being undertaken at 1430 East New York Avenue, Deland, Florida. During the course of inspecting that property, Vanderlugt observed excavation activities on the drainfield located next door at 1444 East New York Avenue. More specifically, Vanderlugt observed an area in the back yard approximately 6 feet by 20 feet in size which had been recently excavated and a large pile of sand nearby. In the excavated site, he saw a rock bed of the size commonly used in drainfields, "clean" and "newly installed" rocks, and a "black paper" covering a part of the rocks. Therefore, he concluded that the excavating firm had just installed a new rock drainfield. This type of activity constitutes a repair to an existing drainfield and requires that such work be performed by a licensed septic tank contractor. It also requires that appropriate permits be obtained from the Health Department. Although Respondent contended that the work was merely to correct a "minor structural flaw" which would not require a permit, Vanderlugt's testimony is more persuasive on this issue, and it is found that a more substantial repair to the drainfield was made. Further inquiry by Vanderlugt revealed that no permits had been obtained for the repair of a drainfield from the Health Department by the excavating company, Collier Enterprises. After a brief conversation with a Collier Enterprises employee, the substance of which is hearsay in nature and cannot be used, Vanderlugt visited the offices of Delco Oil Company and spoke with Respondent, who is employed by that firm. In doing so, Vanderlugt was under the impression that Respondent owned the property in question. During his brief conversation with Repondent, Vanderlugt pointed out that he had to issue a citation because no permit had been obtained for the work at the property in question. DeLuca responded with words to the effect that "they [Collier Enterprises] broke a pipe and they fixed what they broke." Apparently, there was no discussion as to whether Respondent or someone else actually owned the property. Vanderlugt returned to the property in question and performed a second inspection on November 3, 1999. Because no permits had been obtained by that date, and the drainfield site had been covered, a recommendation for a citation was prepared by Vanderlugt. A Citation for Violation was later issued by the Department on December 22, 1999, alleging that Respondent had failed to obtain permits before making a drainfield repair. The Citation was delivered to Respondent at Delco Oil Company. Because Collier Enterprises was not licensed to perform the work, it was given a first violation "warning" letter by the Health Department, as required by a Department rule. During later meetings with Respondent and others, Vanderlugt learned that the actual owner of the property in question was Deluca Properties, Inc., and not Steve DeLuca. For some reason, however, the Department declined to amend its citation and charge the actual owner with the alleged violation. Although Petitioner asserted at hearing and in its Proposed Recommended Order that Respondent is the owner's registered agent, there is no competent evidence of record to support this assertion. According to the general manager of Delco Oil Company, which is apparently owned by Steve Deluca and others, no permission was given to the excavating company to make any repairs. Indeed, Deluca Properties, Inc. has a licensed septic tank contractor who makes all septic tank repairs, when needed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Administrative Complaint for lack of jurisdiction. DONE AND ENTERED this 14th day of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of June, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Christopher R. Ditslear, Esquire Post Office Box 41 Deland, Florida 32721-0041 William W. Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
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. During times material, R. O. Crosby held a license for the premises known as Crosby Apartments, license number 60- 01726H, located at 732 Joe Louis Avenue, Pahokee, Palm Beach County, Florida. (Petitioner's Exhibit A). On March 24, 1986, Arnold Pergament, an Environmental Health Specialist employed with Petitioner, inspected Crosby Apartments and issued a notice of violation to Respondent for several violations of Florida Statutes and Petitioner's Rules. (Petitioner's Exhibit B). Inspector Pergament observed the following conditions: Fire Extinguishers: Inspector Pergament noted that there were no fire extinguishers on the premises which, based on its size, required a minimum of four fire extinguishers to comply with safety rules and regulations for tenants. Exit/Obstructions: Inspector Pergament observed an abandoned refrigerator on the second floor walkway which impeded the progress of persons walking in that area. Public Lighting: There were missing lights in the public toilets and other public facilities. Overhang: The roof overhang above the second floor walkway was broken; plaster was peeling and two stair handrails were loose; the steps which held the anchors for the handrails were cracked and wobbly and the stair handrails were unsafe for tenants to traverse by placing weight on the railings. Public Facilities: The public restroom on the second floor had an opening in the drainline from the urinal; the bathroom ceilings were damaged; stained walls in public restrooms and the showers, sinks and commodes were stained. The overall condition of the public facilities were dirty, grimy and inadequately cleaned. The bathrooms and toilets were not designated for each sex. Screenings: There were missing screens in the bathroom windows and box screens on other windows were torn and/or vandalized. Railings: There was a large open space in the second floor guard railings presenting a hazardous situation for minors and others. Inspector Pergament made a routine reinspection of the Crosby Apartments during September, 1986, and observed that three of the four required fire extinguishers had been replaced. He also observed that the screens had been replaced except one window in a bathroom. All other violations which were observed during the March 24, 1986, inspection still existed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner enter a Final Order finding the Respondent guilty of violations listed in the Notice to Show Cause issued on March 25, 1986, to the Crosby Apartments, license number 60-017265 and imposing a civil penalty assessment of $2,100.00 or $300.00 per violation as found herein. RECOMMENDED this 18th day of December, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of December, 1986. COPIES FURNISHED: Lynne A. Quimby, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 R. O. Crosby 478 East Main Street Pahokee, Florida 33476 R. Hugh Snow, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32303
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a plumbing contractor. He is now, and has been at all times material to the instant case, licensed to engage in the plumbing contracting business in the State of Florida. His license number is CF C020307. At all times material to the instant case, Respondent was the primary qualifying agent for A'Aabbott, a plumbing contracting business located in Fort Lauderdale, Florida. In August of 1992, A'Aabbott entered into a written contract (Contract) with Nereo Agostinelli in which it agreed, for $3,225.00, "[t]o furnish labor and materials to install [on Agostinelli's property in Plantation, Florida a] 600 sq. ft. drain field to all codes at standard practice." Respondent signed the Contract on behalf A'Aabbott. His license number, however, was not written or otherwise displayed on the Contract. The Contract contained the following warranty provision: "3 year conditional warranty-must upkeep interior plumbing." Agostinelli paid the $3,225.00 Contract price by check. A'Aabbott thereafter installed a 600 square foot drain field on Agostinelli's property, as it had agreed to do. Approximately two days after it had been installed (which was within the three-year warranty period), the system failed and raw sewage backed up into Agostinelli's residence on the property. The system failed because pipe that A'Aabbott had installed as part of the project had been cracked during installation by a large rock and had become clogged with soil and therefore could not carry effluent to the drain field. The "interior plumbing" that Agostinelli was required maintain as a prerequisite to his receiving the benefit of the Contract's "3 year conditional warranty" did not cause the failure of the system. Agostinelli made numerous attempts to contact A'Aabbott and request that it fix the problem, as A'Aabbott was required to do under the Contract. When Agostinelli spoke with Respondent, Respondent told him that A'Aabbott had no intention of doing anything further for him. Although A'Aabbott was made aware of the system's failure, it failed to take any action to repair the system. Sewage continued to back up into Agostinelli's residence. On three occasions, Agostinelli had Raider Rooter Sewer and Drain Cleaning, Inc., (Raider Rooter) come to his residence and remove sewage. The total cost to Agostinelli of Raider Rooter's services was $355.00. Agostinelli would not have incurred these costs had the system installed by A'Aabbott not failed. Having been unsuccessful in his efforts to have A'Aabbott honor its warranty under the Contract, Agostinelli contracted with B and N Dozing and Bobcat Service (B and N), on or about March 23, 1993, to make the necessary repairs to the system. He paid B and N $670.00 to make these repairs. There have not been any problems with the system since it was repaired by B and N.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order: (1) finding Respondent guilty of the violations of Chapter 489, Florida Statutes, alleged in Counts I and II of the Amended Administrative Complaint, and (2) fining Respondent $1,100.00 for having committed these violations and requiring him to pay $1,025.00 to Agostinelli in restitution and to reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of the charges set forth in the Amended Administrative Complaint. DONE AND ENTERED this 16th day of July, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 16th day of July, 1997.
The Issue Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida. The two apartments in the duplex are serviced by a single septic tank and drainfield. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit). A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin AO2 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6 Room 306 Tallahassee, Florida 32399-0700 Glenn E. Woodard, pro se Post Office Box 2000 Eaton Park, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830
Findings Of Fact In May, 1986, Radar Corporation, owned by Ronald Ross, bought the assets of United Water Consultants, Inc., and continued the business of selling water purifiers under the fictitious name, United Water Consultants. As part of the agreement to purchase the United Water Consultants' assets, Ross, who had no experience in the business, insisted that the seller arrange to have an experienced manager agree to stay on and work for Radar at least until either Ross was able to learn the business adequately or could hire another suitable manager. The seller recommended, and Radar hired as manager, a man named Robert Gillette, who had about 30 years experience in the business. One of the first orders of business for Radar and Gillette was to hire staff, including telephone solicitors, the heart of the business. Among-those Gillette hired were the petitioners--Leisha F. Fickes, Petitioner in Case No. 87-2605, hired in early June, 1986; Marian C. Norz, Petitioner in Case No. 86- 2606, hired in late May, 1986; and Eileen A. Warner, Petitioner in Case No. 86- 2607, hired approximately May 20, 1986. Fickes, Norz and Warner (like all other United Water Consultants personnel) signed agreements shortly after they began work stating that they were independent contractors. But the main purpose of those agreements, as Gillette explained to them, was to help justify Radar's failure to take federal income tax withholding and social security out of their pay checks. Functionally, the petitioners had the attributes of employees. They were under the close supervision, direction and control of Gillette in the day-to-day details of their work. They were paid a salary based on an hourly wage, plus commissions on telephone solicitations that resulted in sales. Soon after the petitioners began work, Gillette began making advances towards them. At first, Gillette was not too bold and some of his advances were innocent enough to be in public. He would do things like come up behind one of them and gently massage her shoulders and neck. This type touching was not entirely unwelcome, especially to someone who had been sitting in one place making telephone calls for some length of time. But very quickly, Gillette began to subject the petitioners to coarse and unwelcomed sexual advances in private. On one occasion, Gillette came in the room where Fickes was working and, after massaging her shoulders, began to try to kiss her neck. On another occasion, Gillette loaned Fickes $20 and implied she could pay him back with sexual favors. Later, he began to take opportunities to drop pens and similar articles down her blouse and offer to retrieve them himself. One day Gillette came up behind Warner after posting recent sales and began to rub her breasts, saying "see what I got for you?" Warner pushed him away, and he angrily stormed out of the office. On one Friday, Gillette offered Warner $20 for oral sex and asked her to think about it. On Monday, Gillette followed up his offer and, when Warner declined the offer, said he thought she probably did it for her husband for free. Later, to punish Warner for her refusal to give him sexual favors, Gillette began to give her customer lists for solicitation bearing the names of people who recently had declined to buy a water purifier, and Warner's commissions dropped. When Warner complained, Gillette hold her, "you do for me, and I'll do for you." When Norz asked Gillette for higher commissions, Gillette also told her that he would get her more money in return for sexual favors. He also told her, when she refused his requests that they go out socially together, that he did not know why she was married to an "old man." As Gillette's conduct worsened, all three of the petitioners separately went directly to Ross to complain. Ross said he would look into the allegations and "take care of it." In fact, Ross did nothing. Although most of Gillette's coarser sexual advances were made in private, Norz once observed Gillette rubbing Warner's shoulders as he closed the door of the room they were in, and Warner once observed Gillette drop an article down Fickes' blouse. As they talked with one another, the petitioners began to realize the extent of Gillette's conduct and decided to approach Ross together to see if they could be more persuasive. On July 11, 1986, the petitioners met Ross in the parking lot as he came in to work and demanded to speak to him. They reiterated the facts and demanded that Ross fire Gillette or move him out of the telephone room or they would quit. Ross asked them to come back after lunch. Meanwhile, Ross confronted Gillette for the first time, and Gillette denied the allegations. Gillette demanded a direct confrontation with the petitioners, thinking they would back down. At the meeting after lunch, the petitioners re-asserted their allegations, and Gillette angrily stormed out of the room, expressing an ultimatum that it looked like it would have to be him or them. Ross, whose business would be seriously adversely affected by the departure of Gillette, his manager, told the petitioners that he would have to discuss the situation with his "colleagues" and would get back with them. They told him that they were anxious to hear from him because they (especially Warner and Fickes) needed the work but that they would no longer work under Gillette. When the petitioners did not hear from Ross, Fickes telephoned him and was told that they all had been fired, allegedly because a customer list had turned up missing. (If true, the petitioners had nothing to do with it.) Later, Ross would maintain that the petitioners voluntarily quit on July 11, 1986. Fickes and Warner earned approximately $220 per week and Norz earned approximately $195 per week at United Water Consultants. Norz made no real effort to mitigate damages by seeking other employment after July 11, 1986. Warner and Fickes, both of whom were pregnant, were unable to find other employment before the birth of their babies in August and November, 1986, respectively. Warner took about six weeks off after childbirth and worked three different jobs from late October, 1986, through July, 1987, each of which paid her approximately $140 per week. Fickes did not return to work until March, 1987, when she began earning approximately $170 per week at a restaurant. /1 At least from the time Radar took over the United Water Consultants business through at least December, 1986, at least five employees worked for the business each and every week. Radar operates the United Water Consultants business out of an address located in Largo, a municipality in Pinellas County other than the City of Clearwater.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Community Relations Board of the City of Clearwater, acting as the Commission that administers Pinellas County Ordinance 84-10, codified under Chapter 17.5 of the Pinellas County Code, enter a final order: Holding the respondents, Radar Corporation and United Water Consultants, guilty of having violated Section 2-17.5-3, Pinellas County Code, by discriminating against the petitioners, Leisha F. Fickes, Marian C. Norz and Eileen A. Warner, in employment on the basis of sex; and Ordering the respondents, Radar Corporation and United Water Consultants, jointly and severally, to pay to Leisha F. Fickes $7,740 and to Eileen A. Warner $5,880 as actual damages RECOMMENDED this 6th day of November, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSON 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 6th day of November, 1987.
The Issue The basic issue in this case concerns whether the Petitioners are entitled to reimbursement from the Construction Industries Recovery Fund.
Findings Of Fact On or about December 5, 1994, the Petitioners entered into a contract with an entity named James Plumbing, Inc., pursuant to which James Plumbing, Inc., agreed to perform specified plumbing work for a two-story duplex the Petitioners were building. The total contract price for the plumbing work was $10,000.00. Article 4 of the contract, titled "Progress Payments," contained the following language: On completion of rough-in plumbing $4,000.00 is due, at top out of all riser pipes and runs for plumbing an additional $4,000.00. The final payment of $2,000.00 to be paid upon final completion and hookup of all plumbing items and approval of same by City of Delray Building Department. A lien release will be required upon final payment by James Plumbing, Inc. Owner's (sic) will furnish lien release to James Plumbing, Inc., for execution. The contract described above also included language to the effect that the work to be performed under the contract would be commenced "as per owner/builder schedule," and the work would be substantially completed in the spring or summer of 1995 "as per schedule of owners." At the time of the signing of the contract described above, and at all other times material to this case, James Plumbing, Inc., was a Florida corporation that had been administratively dissolved by the Florida Department of State. At the time of the signing of the contract described above, and at all other times material to this case, an individual named James West was licensed by the CILB as a "Certified Plumbing Contractor." At the time of the signing of the contract described above, and at all other times material to this case, James West purported to be the "qualifier" for the entity known as James Plumbing, Inc. James West was the original incorporator of the corporation named James Plumbing, Inc. At all times material to this case, James West was the only person who had any ownership interest in, or had any control over the affairs of, the corporation named James Plumbing, Inc. James West, doing business under the name of the defunct corporation named James Plumbing, Inc., finished the "rough-in" in June of 1995 and finished the "top out" in March of 1996. Consistent with the terms of the contract, he was paid $4,000.00 in June of 1995 and he was paid $4,000.00 in March of 1996.1 For several reasons not material to the issues in this case, progress on other aspects of the construction project took longer than expected and in was not until the spring of 1999 that the Petitioners contacted James West to schedule the completion of the plumbing work under the contract signed in December of 1994. As a result of disagreements regarding the scheduling of the plumbing work, by letter dated April 12, 1999, the Petitioners advised James West that they had elected to terminate the plumbing contract dated December 5, 1994. Neither James Plumbing, Inc., nor James West individually ever performed the work that remained to be performed under the contract dated December 5, 1994, after the "top out" that was completed in March of 1996. In order to finish the plumbing work that remained to be done under the contract dated December 5, 1994, the Petitioners hired another plumbing contractor, Lee Wilder Plumbing, Inc. ("Wilder"). During the course of finishing the plumbing work, Wilder discovered that some of the work done by James West was incomplete and that some of the work done by James West had been done improperly and had to be redone. Wilder finished the work that remained to be done under the contract dated December 5, 1994, and also corrected the mistakes in the work that James West had done. For these services the Petitioners paid Wilder a total of $2,967.50. In order to correct the mistakes made by James West, it was also necessary to remove portions of existing interior walls and to then rebuild and paint those portions of the interior walls. This work on the interior walls cost the Petitioners an additional $1,000.00. As a result of the matters described in paragraphs 6, 7, and 8, above, the completion of the Petitioners' building was delayed. By reason of the delay, the Petitioners lost rental income in the amount of $4,350.00. The Petitioners filed a civil action in the County Court in Palm Beach County, Florida, against James West seeking to recover compensation for the harm caused by the failure of James West to properly perform his obligations under the contract of December 5, 1994. On September 3, 2002, the Petitioners obtained a final judgment against James West, individually. The judgment was in the total amount of $8,082.35, comprised of the following elements: Plumbing completion and repairs $2,967.50 Demolition and repair of walls $1,000.00 Cost of water heaters2 $400.00 Loss of rental income $4,350.00 Subtotal $8,717.50 Less $2,000.00 set off ($2,000.00) Plus prejudgment interest $1,364.85 Total Judgment $8,082.35 The final judgment includes the following language: Under the contract, work was to be completed by spring or summer, 1995. The Defendant actually finished the top-out installation in 1996 but the project was delayed due to a dispute the Plaintiffs had with the city in regard to paving an alley. The Plaintiffs contacted the Defendant in 1999 to finish the work, however, the Defendant requested additional money which he wanted up front. The Plaintiffs did not mind the additional money but objected to paying up front. They terminated the 1994 contract and hired Lee Wilder Plumbing, Inc., to complete the job of installing the fixtures. In May, 2000, the Plaintiffs discovered there was no hot water. The Defendant refused to come out and check on the problem so Lee Wilder Plumbing, Inc., was called. The evidence showed that cuts had to be made in the walls and floor to find the problem. While the Defendant asserts that the problem was crossed pipes which was easy to correct, he never came out to look at the job site. Instead, the evidence showed that there was a hot water pipe missing, that the two cold water pipes were not connected to anything and a new pipe had to be installed getting hot water to the second floor. The evidence further showed that the Defendant did all of the rough plumbing under the slab and top- out plumbing inside of the walls. Pursuant to F.S. 95.11(3)(c), the Court finds the plumbing defect to be a latent defect. Further, the Court finds that the Defendant is responsible for that latent defect. In addition to damages to correct the latent defect, the Plaintiffs seek damages for the cost of hot water heaters and loss of rent/loss of use for three months delay to correct the plumbing problem. It is well settled that the purpose of damages are (sic) to place the injured party in the position it would have been. Tucker v. John Galt Ins. Agency Corp., 743 So. 2d 108 (Fla. 4th DCA 1999). The Court finds that Plaintiffs are entitled to [re]cover the cost of repairing the latent defect in the amount of $2,967.50 and $1,000.00 for the cost of repairing the walls and floor. Further, the Plaintiffs are entitled to recover for the cost of the water heaters of $400.00 and loss of rental income for one unit at $4,350.00. In addition, the Defendant is entitled to a set off of $2,000.00, as the Plaintiffs agreed to pay the Defendant $10,000.00 for the plumbing work in which they actually paid the Defendant $8,000.00. The measure of damages is the cost to complete contract price because parties already agreed to pay contract price for completed work. American Structural Systems, Inc. v. R. B. Gay Const. Co., Inc., 619 So. 2d 366 (Fla. 1st DCA 1993). Measure of damages is contract price diminished only by damages suffered. Fleming v. Urdl's Waterfall Creations, Inc., 549 So. 2d 1057 (Fla. 4th DCA 1989). In addition to the final judgment described above, the Petitioners also received a judgment for costs against James West in the amount of $972.27. The amounts of the final judgment ($8,082.35) and the judgment for costs ($972.27) total $9,054.62. Following the entry of the judgments against James West, the Petitioners made numerous unsuccessful efforts to satisfy the judgment. Despite diligent search and inquiry, the Petitioners were never able to locate any property of James West that could be applied to the satisfaction of the judgments against James West. On or about November 27, 2002, the Petitioners signed a claim form seeking restitution from the Construction Industries Recovery Fund. Their claim was received by the CILB on or about December 3, 2002. Following consideration of the Petitioners' claim, the CILB voted to deny the claim. An order to that effect was issued and filed on January 28, 2004. In that order the CILB gave the following reasons for its denial of the claim: Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants filed to satisfy all requirements for payment from the Recovery Fund. There is no evidence in the file to support the amount of actual damages suffered. Section 489.141(2)(c), states that a person is not qualified to make a claim for recovery from the Construction Industries Recovery Fund, if such person has suffered damages as the result of making improper payments to a contractor as defined in part I of chapter 713. There is no evidence in the file that the liens filed by subcontractors were valid liens under Chapter 713, Florida Statutes. At the beginning of the final hearing the Respondent stated on the record that it was still relying on the reason set forth in subparagraph a, above, but that it was abandoning the reasons for denial set forth in subparagraphs b and c, above. The Respondent also stated on the record that it was of the view that there were two additional reasons for denying the subject claim. The two additional reasons were described as follows: That the underlying court judgment on which the Petitioners' claim is based is not a judgment based on an act that constitutes a violation of subsections (g), (j), or (k) of Section 489.129, Florida Statutes, and That the corporation for which the individual contractor purported to be the qualifier was not licensed at the time of the violations that caused financial harm to the Petitioners. The Petitioners' first notice of the CILB's change in position appears to have been when these two new reasons were stated during the opening moments of the final hearing. In its proposed recommended order the Respondent raises for the first time a third new reason for denying the subject claim. This third new reason is set forth in the underscored portion of the following language from paragraph 28 of the Respondent's proposed recommended order: 29. An asset search indicates that there are no assets from which the judgment can be satisfied. However, James West held at the time of the judgment, and still holds today, an active license. There is no proof that Petitioners exhausted all efforts and demonstrated an inability to collect the judgment as required by Rule 61G4-21.003(2), Florida administrative Code.
Recommendation In view of all of the foregoing, it is RECOMMENDED that a final order be issued in this case concluding that the Petitioners are entitled to reimbursement from the Construction Industries Recovery Fund in the amount of their final judgment and their cost judgment, for a total reimbursement amount of $9,054.62. DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 30th day of July, 2004.
The Issue The issue is whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner as a shift supervisor at the Conserv I wastewater treatment facility.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a white male. At the time of the events giving rise to this proceeding, Petitioner was 52 years old. Petitioner holds a Class “A” wastewater treatment plant operator license from the State of Florida. Petitioner has worked for the City as a wastewater treatment plant operator since 1991. All of Petitioner’s experience with the City has been at the City's Iron Bridge facility. Respondent is a municipality of the State of Florida. Respondent operates at least three wastewater treatment facilities -– known as Conserv I, Conserv II (not directly implicated in this case), and Iron Bridge -– through its Wastewater Process and Operations Bureau (Wastewater Bureau). Each facility is slightly different. The Conserv I facility has a capacity of 7.5 million gallons per day (mgd) and is designed to service approximately 75,000 people. The facility uses a unique, technologically complex process to treat wastewater. The treated wastewater from the Conserv I facility is used for irrigation, and is referred to as “reuse” or reclaimed water. The Iron Bridge Facility is larger than the Conserv I facility. It has a capacity of 40 mgd and is designed to service approximately 400,000 people. The facility uses a more traditional process to treat the wastewater. The treated wastewater from the Iron Bridge Facility is discharged into wetlands and rivers; it is not used as reclaimed water. Hiring Process for the Conserv I Shift Supervisor In early 2001, a shift supervisor position came open at the Iron Bridge facility. Petitioner applied for that position, but he was not interviewed. The Iron Bridge shift supervisor position was filled by Don Proscia, a 64 year old white male. Mr. Proscia was a shift supervisor at the Conserv I facility, and his hiring at the Iron Bridge facility was considered to be a “lateral transfer” by the City. Apparently, the City does not interview other candidates where an existing employee requests a lateral transfer, which explains why Petitioner was not interviewed for the Iron Bridge shift supervisor position. As a result of Mr. Proscia’s lateral transfer, a shift supervisor position came open at the Conserv I facility. The minimum qualifications for the Conserv I shift supervisor position, as reflected on the job posting (Joint Exhibit 12), were graduation from high school, two years of experience in the operation of a wastewater treatment facility, and a valid Florida driver's license. The position also required a current Class "B" wastewater treatment operator license, and required a Class "A" license to be obtained within two years of employment. Experience in advance wastewater treatment and prior supervisory experience were preferred. Petitioner applied for the Conserv I shift supervisor position. Terry White and Klaus Blixer also applied for that position. Mr. White is an African-American male, and he was 29 years old at the time. He has worked for the City as a wastewater treatment plant operator since 1994. All of Mr. White’s experience with the City has been at the Conserv I facility. At the time of his application, Mr. White held a Class “B” wastewater treatment plant operator license. Subsequently, he obtained a Class "A" license. Mr. Blixer is a white male. The record does not reflect his age. Mr. Blixer has worked for the City as a wastewater treatment plant operator since approximately 1995. All of his experience with the City has been at the Iron Bridge facility. At the time of his application, Mr. Blixer held a Class “A” wastewater treatment plant operator license. The three applicants for the Conserv I shift supervisor position were interviewed by a committee composed of Ernie Cox, Charlie McComas, and Paul Deuel, all of whom are members of management with the Wastewater Bureau. Mr. Cox is an African-American male; Mr. McComas and Mr. Deuel are both white males. All of the committee members are 40 years of age or older. The committee interviewed each applicant and asked them the same set of interview questions. The interviews were all conducted on the same day. After all of the interviews were complete, the committee discussed their general impressions of each applicant. The committee did not make the hiring decision on that day. However, each of the committee members testified at the hearing that they ranked Mr. White the top candidate at that point, and two of the three committee members testified that they considered Mr. Blixer (not Petitioner) to be the second-best candidate. In an effort to obtain additional input on the applicants, Mr. Cox contacted Charles Thompson, the plant manager at the Iron Bridge facility where Petitioner and Mr. Blixer worked. Mr. Cox is the plant manager at the Conserv I facility where Mr. White worked, so he was generally familiar with him and his qualifications; however, he also obtained feedback on Mr. White from Mr. McComas, who was a chief operator at Conserv I and was more familiar with Mr. White's attendance and on-the-job performance. Mr. Thompson did not strongly recommend either Petitioner or Mr. Blixer. He characterized Petitioner as an "average" employee who did what was asked of him but nothing more. Mr. Cox relayed this information to the other members of the committee. Based upon the interviews and the additional information acquired by Mr. Cox, the committee unanimously agreed to recommend that Mr. White be hired for the Conserv I shift supervisor position. Mr. Cox forwarded the committee’s recommendation to David Sloan, the chief of the Wastewater Bureau. Mr. Sloan accepted the committee’s recommendation and forwarded it to Tom Lothrop, the director of the Environmental Services Department, for final approval. Mr. Lothrop gave final approval to the recommendation, and Mr. White formally assumed the shift supervisor position in June 2001. There is no credible evidence that either race or age were considered at any point during the interview process or that the committee was given a mandate by anyone in the City's management to hire a particular person or a person of a particular race or age for the Conserv I shift supervisor position. Indeed, at the hearing, each member of the interview committee adamantly (and credibly) denied consideration of race or age in connection with their recommendation to hire Mr. White. The committee members based their recommendation to hire Mr. White on his qualifications, work ethic, and experience at the Conserv I facility. As discussed below, Mr. White was more qualified for the Conserv I shift supervisor position than was Petitioner. The only direct evidence of discrimination cited by Petitioner in support of his claim allegedly occurred during the course of the internal grievance process initiated by Petitioner after he was not hired for the shift supervisor position. That process and the alleged evidence of discrimination are discussed below. City’s Internal Grievance Process After Petitioner learned that he had not been hired for the shift supervisor position, he filed a grievance with the City. The grievance was denied at each step in the process as described below. The City’s grievance process includes four steps. Step One is a hearing before Petitioner's plant manager, i.e., Charles Thompson. Step Two is a hearing before the chief of the Wastewater Bureau, i.e., David Sloan. Step Three is a hearing before the director of the Environmental Services Department, i.e., Tom Lothrop. Step Four is a hearing before a three-member grievance committee composed of two persons selected by the City and one person selected by Petitioner. The first three steps are relatively informal and are not recorded. They are meetings and/or discussions to address the concerns of the person who filed the grievance. Step Four is a more formal hearing, and it is tape recorded. Petitioner waived his Step One hearing, and the record does not include any credible evidence regarding Petitioner's Step Three hearing. Indeed, the focus of Petitioner's discrimination claim is on events which allegedly occurred at the Step Two and Step Four hearings. Petitioner's Step Two hearing was conducted on September 14, 2001. There is no credible evidence that Mr. Sloan (or anyone else) made a statement at that hearing regarding a need or requirement to hire a minority for the Conserv I shift supervisor position. Petitioner's Step Four hearing was conducted on November 10, 2001. That portion of the tape recording of the Step Four hearing introduced by the parties in this proceeding does not include any direct evidence of discrimination. Mr. Sloan did state that given two equal candidates, he would favor the minority in an effort to increase the diversity in the Wastewater Bureau. However, he further stated (consistent with his testimony at the hearing) that race did not factor into the decision to select Mr. White for the Conserv I shift supervisor position because Mr. White and Petitioner were not equal candidates. One of the exhibits discussed by Mr. Sloan at the Step Four hearing compared the percentage of black and white managerial employees in the Wastewater Bureau as a result of Mr. White's promotion with the percentage which would have existed if Petitioner had received the shift supervisor position. That exhibit, which was received in this proceeding as Joint Exhibit 7, was prepared by Mr. Sloan solely for use at the Step Four hearing to rebut Petitioner's discrimination claim and to show that the City does not discriminate based upon race or age. The exhibit was not used in connection with the decision to select Mr. White for the Conserv I shift supervisor position. Indeed, there is no credible evidence that the document existed prior to the Step Four hearing. In any event, Joint Exhibit 7 shows that there is not a pattern of discrimination in the Wastewater Bureau against persons in Petitioner's class (i.e., white males over age 45). The exhibit shows that more than 67 percent of the managers and supervisors in the Wastewater Bureau are white, and 35 percent of the managers and supervisors were promoted to those positions after the age of 46. The other exhibit discussed by Mr. Sloan at the Step Four hearing compared the qualifications of Mr. White and Petitioner. That exhibit, which was received in this proceeding as Joint Exhibit 6, presents an incomplete view of Petitioner's education and training because Mr. Sloan obtained the information on Petitioner (and Mr. White) from the personnel files maintained at the Wastewater Bureau, not the files maintained in the City's Personnel Office. The omissions in Joint Exhibit 6 are immaterial in this proceeding, however, because the record includes the Personnel Office files for Petitioner (Joint Exhibit 1) and Mr. White (Joint Exhibit 2), and those exhibits rather than Joint Exhibit 6 were relied upon in evaluating the relative qualifications of Petitioner and Mr. White. Relative Qualifications of Petitioner and Mr. White Both Petitioner and Mr. White met the minimum qualifications for the Conserv I shift supervisor position as reflected on the job posting. Neither Petitioner nor Mr. White has a college degree, but both have taken college courses. Mr. White has taken courses towards a business administration degree at Valencia Community College. Petitioner completed a correspondence course from Michigan State University on supervisory management in the water and wastewater field.2 Both Petitioner and Mr. White have attended numerous seminars and continuing education courses on wastewater. Petitioner has held a Class "A" wastewater treatment plant operator license since at least 1995. Mr. White held only a Class "B" license at the time of his application; however, he obtained his Class "A" license in April 2002, which is well within the time specified in the job posting for the shift supervisor position. Mr. White has a reclaimed water field inspector certification, which is important for Conserv I because the facility produces reclaimed water. Petitioner does not have this certification. Both Petitioner and Mr. White had worked "out of class" as shift supervisors at their respective plants. Both performed well in those positions. Petitioner had slightly more experience than Mr. White as a wastewater treatment plant operator with the City, i.e., 10 years compared to seven years. However, all of Mr. White's experience was at the Conserv I facility, whereas all of Petitioner's experience was at the Iron Bridge facility. The location of the experience was one of the most significant factors in the hiring decision. Mr. White's experience at the Conserv I facility meant that he would not have a significant learning curve in the shift supervisor position. By contrast, it would take Petitioner at least three to six months to adapt to the operational differences at the Conserv I facility. The other significant factors in the hiring decision were Mr. White's work ethic, his demonstrated communication and leadership skills, and his familiarity with the City's policies and procedures. Mr. White demonstrated his communication and leadership skills as a union representative and as a member of the City's pension advisory board. Mr. White's familiarity with the City's policies and procedures was important because he would be responsible for interpreting and applying those policies and procedures to the employees that he supervised. Mr. White was characterized by his supervisors as an exemplary employee who was highly motivated and takes pride in performing his job well. He willingly took on additional tasks, and he worked well without direction. By contrast, Petitioner was characterized by his supervisors as an "average" employee who did what was asked of him but nothing more.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 13th day of December, 2002.
