The Issue This matter concerns the issue of whether the Respondent's license as a heating and air conditioning contractor should be suspended, revoked or other disciplinary action taken as a result of allegedly contracting outside the scope of his license, willfully or deliberately violating a local building code by failing to pull a permit, and failing to affix his license number to a contract and making an untrue representation in the practice of contracting. Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommend Order, they have been rejected as being irrelevant to the issue in this cause, or as not having been supported by the evidence.
The Issue Whether the Respondent acted fraudulently, arbitrarily, illegally or dishonestly in proposing to award a contract for State Project No. 99003-3501 to the Intervenor.
Findings Of Fact The Parties. The Respondent, the Department of Transportation (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department sought bidders for a construction project by invitation to bid. The Petitioner, North Florida Construction, Inc. (hereinafter referred to as "North Florida"), submitted a bid on the Department's construction project. The Intervenor, Pro-Steel Buildings, Inc. (hereinafter referred to as "Pro-Steel"), also submitted a bid on the Department's construction project. The Subject Invitation to Bid. The Department issued an Invitation to Bid for State Project Number 99003-3501 (hereinafter referred to as the "ITB"). The ITB solicited bids on a construction contract for the relocation of the Department's maintenance yard facility in Tallahassee, Florida. The ITB required that each prime contractor either subcontract at least 25 percent of the total contract price to a Certified Minority Business Enterprises (hereinafter referred to as a "CMBE"), or show a good-faith effort to meet the 25 percent goal. Pages 78-81, Joint Exhibit 1. Included in the Instructions to Bidders, at Section B-14, are instructions concerning "Listing of Subcontractors." Page 15, Joint Exhibit 1. Section B-14 of the ITB provides: In order that the Owner may be assured that only qualified and competent subcontractors will be employed on the project, each Bidder shall submit in triplicate with his proposal a list of the subcontractors who will perform the work for each Division of the Specifications utilizing the "List of Subcontractors" form enclosed as Exhibit 5. The Bidder shall have determined to his own complete satisfaction that a listed subcontractor has been successfully engaged in this particular type of business for a reasonable length of time, has successfully completed installations comparable to that which is required by this Agreement and is qualified both technically and financially to perform that pertinent phase of this work for which he is listed. . . . Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. [Emphasis added]. Exhibit 5, List of Subcontractors, provides, in part, the following: THE UNDERSIGNED, HEREINAFTER CALLED "BIDDER", LISTS BELOW THE NAME OF EACH SUBCONTRACTOR WHO WILL PERFORM THE PHASES OF THE WORK INDICATED. FAILURE OF THE BIDDER TO SUPPLY SUFFICIENT INFORMATION TO ALLOW VERIFICATION OF THE CORPORATE, AND DISCIPLINE LICENSE STATUS OF THE SUBCONTRACTOR MAY DEEM THE BID AS BEING NON-RESPONSIVE. Page 55, Joint Exhibit 1. Exhibit 5 was required to be completed and submitted with all bids pursuant to Section B-14 of the ITB. From the technical specifications for Heating, Ventilation and Air Conditioning work (hereinafter referred to as "HVAC"), for the project at issue, it could be inferred that two 30-ton air conditioning units were required. The Bids Submitted by Pro-Steel and North Florida. Bids on the ITB were submitted and opened on March 24, 1994. North Florida submitted a bid in response to the ITB: On the envelope containing the sealed bid of North Florida, North Florida requested that $14,000.00 be deducted from its proposed contract price. North Florida submitted a bid of $2,997,007.00. North Florida was the apparent second low bidder. North Florida listed Gallon & Sons as the subcontractor responsible for HVAC work. North Florida also listed Gallon & Sons as a CMBE. Gallon & Sons was listed on Exhibit 5, the Minority Business Enterprise Utilization Summary, submitted with North Florida's bid. North Florida proposed to install two 30-ton air conditioning units. Pro-Steel also submitted a bid in response to the ITB. Pro-Steel submitted a bid of $2,993,000.00. Pro-Steel was the apparent low bidder. Pro-Steel listed "Watts Mechanical" as the subcontractor responsible for the HVAC work required by the ITB. Pro-Steel also listed Watts as one of two CMBE subcontractors. "Watts Mechanical" was listed on Exhibit 5, the Minority Business Enterprise Utilization Summary, submitted with Pro-Steel's bid. Pro-Steel's bid submittal proposed the installation of two 30-ton air conditioning units. The Department's Decision. It is the policy of the Department to waive minor irregularities in bid submittals. Irregularities with North Florida's bid were correctly determined to be minor by the Department and were waived. The bid tabulation sheet and the bids indicated that Pro-Steel submitted the lowest, responsive bid. The Department proposed to award the contract under the ITB to Pro-Steel. Without Watts as a CMBE, Pro-Steel would not meet the 25 percent CMBE participation goal of the ITB. The Department's project manager for the ITB determined that Watts was a CMBE in evaluating the bid submittals. Qualification of CMBE's to Perform Work Proposed. Gallon & Sons was at all times relevant to this proceeding, registered as a CMBE in hearing and air conditioning. Eddie Gallon, Sr., was at all times relevant to this proceeding, the registered qualified agent for Gallon & Sons. Mr. Gallon holds a Class A license in heating and air conditioning. The stock of Watts Mechanical, Inc. (hereinafter referred to as "Watts"), is owned 100 percent by Jacqueline Watts. Ms. Watts is also the President of Watts. Ms. Watts held and still holds a Class B HVAC license from the Department of Business and Professional Regulation. Ms. Watts was registered with the Department of Business and Professional Regulation as the qualifying agent for Watts. Watts was registered with the Department of Management Services as a CMBE under the category of heating and air conditioning contractors. On January 1, 1994, Watts acquired the assets of Energy Systems of Tallahassee (hereinafter referred to as "Energy Systems"). Energy Systems was then owned by Thomas Trapane. As of January 1, 1994, it was intended that Watts be renamed "Watts Mechanical and Energy Systems, Inc." Mr. Trapane held and still holds a Class A HVAC license from the Department of Business and Professional Regulation. Mr. Trapane was registered with the Department of Business and Professional Regulation as the qualifying agent for Energy Systems. As of January 1, 1994, Mr. Trapane became an employee of Watts. As of March 24, 1994, when bids were submitted on the ITB: Watts had not filed an amendment to its Articles of Incorporation reflecting the change in name to Watts Mechanical and Energy Systems, Inc. (hereinafter referred to as "Watts Mechanical and Energy"). The amendment was not filed until April 26, 1994. Mr. Trapane had not registered with the Department of Business and Professional Regulation as the qualifying agent for Watts or Watts Mechanical and Energy. It was not until May 2, 1994, that the Department of Business and Professional Regulation issued a letter indicating that Mr. Trapane was a secondary qualifying agent for Watts Mechanical and Energy. Watts had not notified the Department of Management Services of its name change with regard to its CMBE certification. Based upon the foregoing, at the date of the submittal of bids and the proposed award of contract pursuant to the ITB, Watts did not hold the license required in order for it to complete the work Pro-Steel had represented to the Department Watts would perform. Substitution of Subcontractors. It is the policy of the Department to allow contractors to substitute subcontractors for good cause if proper documentation is submitted. The evidence, however, failed to prove the Department's policy concerning substitution of subcontractors applies in this matter. The evidence also failed to prove that the Department's policy concerning substitution of contractors allows the Department to accept as meeting part of the CMBE requirement of the ITB a CMBE that was not qualified to perform the required work as of the date of bid award. Alternative Proposals. The ITB allows substitutions for specified systems or products contained in the ITB. Page 28, Joint Exhibit 1. Substitutions, however, must be requested of the Architect-Engineer and written approval from the Architect-Engineer must be obtained. Substitutions must be submitted within 45 days after award of the contract. No substitutions were submitted by Pro-Steel or Watts at the time of bid submittal. As of the date of the final hearing of this case, Watts had decided to suggest that the configuration of the HVAC of the project be changed in a manner that would not require a Class A license for the work to be performed. The evidence failed to prove that the Department was aware of this proposal at the time of its initial decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order declaring the bid submitted by Pro-Steel Builders, Inc., to be non-responsive. DONE AND ENTERED this 13th day of June, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of June, 1994 APPENDIX Case Number 94-2353BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. North Florida's Proposed Findings of Fact Accepted in 2 and hereby accepted. Accepted in 1. Accepted in 3 and hereby accepted. Accepted in 4 and 10. Accepted in 10-11 and 13. Accepted in 6-8. Accepted in 14. Accepted in 15. Accepted in 7. Accepted in 25 and 32. Conclusion of law. Accepted in 9. Conclusion of law. See 27 and 32. Accepted in 32. Accepted in 15. Accepted in 20. Accepted in 7-8. See 33. The Department's Proposed Findings of Fact Accepted in 4. Accepted in 2-3 and 11-12. Accepted in 6. Accepted in 10-11. Accepted in 11 and 13. Accepted in 11 and 15. See 26, 28 and 32. Watts Mechanical, Inc. was a CMBE at the time of bid submittal. Watts Mechanical & Energy Systems, Inc., did not exist at the time of bid submittal. Accepted in 22. Accepted in 9. 9 Accepted in 24. 10-11 Accepted in 25. Accepted in 31. Accepted in 29. Accepted in 32. Accepted in 23. Hereby accepted. Accepted in 20. Accepted in 21. Accepted in 36. But see 37-38. Not relevant. See 7. Accepted in 8. 23 See 36-38. Not relevant. Accepted in 17. Pro-Steel's Proposed Findings of Fact Accepted in 4. Accepted in 7-8 Accepted in 8. Not supported by the weight of the evidence. Accepted in 34. See 35. Accepted in 17. 7 Accepted in 2-3, 10-11 and 18-19. Accepted in 14. Accepted in 9 and 36. See 25-26. But see 32. Accepted in 27, 29 and 31. The last sentence is not relevant. Accepted in 32. Not supported by the weight of the evidence. 14 See 34-35. 15 See 36-39 COPIES FURNISHED: Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams General Counsel 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Duffy Assistant General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Tommy Strickland North Florida Construction, Inc. Post Office Box 129 Clarksville, Florida 32430 Stephen J. Kubik, Esquire 155 Office Plaza Drive Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, the Respondent, Thomas W. Hunter, was a certified Class B Air Conditioning contractor, having been issued license number CA C014646, by the State of Florida. At all times material hereto, Derrell Baugh (D. Baugh) was an electrical contractor having been issued a license by the State of Florida. D. Baugh has not had an air conditioning license for Lake County, but has held a City of Eustis air conditioning license for some 15 years. Gregory Duane Baugh (G. Baugh) is the son of D. Baugh. G. Baugh has not been licensed by the State of Florida. The Respondent has been doing business as Hunter Air. The Respondent has never qualified Baugh's Electric, and D. Baugh has never qualified Hunter Air. In approximately 1976, D. Baugh and his son G. Baugh, and the Respondent were partners in the business of Baugh's Electric. There was no written partnership agreement, only a handshake partnership. The Respondent did the air conditioning and refrigeration work, and D. Baugh and G. Baugh did the electrical work. All three of them shared in the profits. If a job involved electrical and air conditioning work, the partner who had already contracted for the job would encourage the main contractor to use the other partner. When the Respondent and D. Baugh were working on the same job, if one partner was behind in his work, the employees of one would assist the one who was behind to complete his work. Further, when working on the same job, and when authorized by the Respondent, D. Baugh would sometimes pull air conditioning permits for the Respondent. This partnership arrangement ended in 1980 or 1982. After the dissolution of the partnership, the Respondent continued to have access to the checking accounts, and charge accounts with wholesalers, of Baugh's Electric. The Respondent can write checks on the account and charge items with wholesalers. Even after the partnership dissolved, Baugh's electric continued to use the business cards of the partnership, which included the Respondent's name. The business part of Baugh's Electric, bookwork and the writing of proposals, is handled by G. Baugh. The field work and troubleshooting is handled by D. Baugh. On June 30, 1985, G. Baugh prepared an electrical and air conditioning proposal for Gary Wyckoff (Wyckoff) on a spec house being constructed by Wyckoff. The proposal was on proposal paper for the business of Baugh's electric and showed the electrical contractor as G. Baugh, the air conditioning contractor as the Respondent, and a breakdown of the cost for each type of work. The total cost for the work, per the proposal, was $4,170. Baugh's Electric had performed other work for Wyckoff, but had not always submitted a written proposal. G. Baugh believed that the Lake County Building Department saw no problem with either the proposals of Baugh's Electric, or with the Respondent being on the proposal sheet of Baugh's Electric, as long as it was specified who was going to do what. G. Baugh has written at least six proposals in this manner. The proposal for the Wyckoff job was written as it was because the Respondent had no proposal paper of his own and it was convenient. Before the Wyckoff job, D. Baugh had a discussion with the Lake County Construction License Investigator, Mary Pasak (Pasak), concerning himself and the Respondent working together. D. Baugh was informed that there was nothing wrong with them working together as long as the Respondent did the air conditioning work and obtained the air conditioning permits, and D. Baugh did the electrical work and obtained the electrical permits. The Respondent testified that he saw nothing wrong with putting multiple proposals from different contractors with different types of licenses on one proposal sheet because he had been employed with companies which engaged in this practice. He testified that he saw nothing wrong with putting his proposal for air conditioning on the same proposal sheet with Baugh's Electric which was to do the electrical work, because everyone who was working on a project, including the Wyckoff job, was made aware of who was doing what. D. Baugh pulled the electrical permit for the Wyckoff job. As part of the air conditioning work, duct work had to be done. To complete the duct work G. Baugh contacted a duct man, James Edwards (Edwards), whom Baugh's Electric had used on several other jobs in the City of Eustis area, because the Respondent was unable to start the job. Edwards knew that he was performing the work under the Respondent's license because he had been informed years ago, during the partnership, that among the partners the Respondent had the air conditioning license. However, Edwards informed the Lake County Building Inspector that he was employed by D. Baugh on the Wyckoff job. Edwards had neither seen nor had any contact with the Respondent. On all the jobs that Edwards had done duct work on for Baugh's Electric, either D. Baugh or G. Baugh had made the contact with him, given him the okay to do the duct work, or paid him. Edwards completed the duct work, and was paid by Baugh's Electric. The Respondent reimbursed Baugh's Electric. No permit to perform the air conditioning work, including the duct work, had been pulled before Edwards started and completed the duct work. Edwards believed that D. Baugh had taken care of the mechanical permit for the air conditioning work. Wyckoff also believed that the mechanical permit had been pulled. Wyckoff knew that the Respondent had the license to perform the air conditioning work, although he had only seen the Respondent twice. Their contact was usually by telephone. The Respondent pulled the mechanical permit for the Wyckoff job after Edwards had completed the duct work. Because the Respondent pulled the permit after the work had begun, he had to pay the Lake County Building Department a double fee for this permit. The Respondent pulled the mechanical permit as a favor to Baugh's Electric. The Respondent did not know that the duct work for the air conditioning job had begun. He knew he was to perform some air conditioning work for Wyckoff on a house, but he did not know which house it was, or where it was located. The Respondent completed the air conditioning work, and on August 21, 1985, submitted to Wyckoff an invoice in the amount of $2,200 for the work. Even though the invoice was on the letterhead of the Respondent's company, Hunter Air, the invoice was filled out by G. Baugh. Wyckoff paid the Respondent for the air conditioning work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Thomas W. Hunter, be found guilty as charged, and that he be assessed an administrative fine in the amount of $1,000. THIS RECOMMENDED ORDER entered on this 24th day of September, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 24th day of September, 1986. COPIES FURNISHED: Errol H. Powell, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas W. Hunter 502 Citrus Avenue Eustis, Florida 32726 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Spanish-speaking native of Cuba with little or no understanding of the English language. He has resided in Miami-Dade County since coming to this country 18 or 19 years ago. In or around 2006, Respondent decided he wanted to start an air conditioning contracting business in Miami-Dade County, and he went to the downtown Miami location of the Miami- Dade County Code Compliance Office (Compliance Office) to inquire about the licensing requirements with which he would have to comply to legally operate such a business in the county. The Compliance Office is responsible for licensing construction contractors (in various trades) operating in Miami- Dade County. The contractors whom the Compliance Office licenses include mechanical contractors doing air conditioning work. Individuals who desire to go into the air conditioning contracting business in Miami-Dade County must complete and submit to the Compliance Office an eight-page "initial application," accompanied by "letters of experience" and a $315.00 application fee. The application is reviewed by the Miami-Dade County Construction Trades Qualifying Board (CTQB). If the CTQB determines that the applicant is qualified to take the licensure examination, the applicant is allowed to sit for the examination. Passing the examination is a prerequisite to licensure. If a passing score is attained, the applicant is notified by the Compliance Office and given the opportunity to submit a "business application" and supporting material (including proof of liability insurance and workers' compensation coverage), accompanied by another $315.00 application fee. If the CTQB approves the "business application," the "applicant is issued a contractor's license number" and given a "competency card" (reflecting such licensure) by the Compliance Office. The applicant then must register with the Department before being able to engage in any contracting work in the county. When Respondent went to the Compliance Office's location in downtown Miami, he was approached by a man carrying a clipboard who spoke Spanish. Respondent was led to believe by the man that he worked for the county (although the man did not present any identification verifying his employment status). The man offered to help Respondent apply for a license, an offer Respondent accepted. After obtaining information from Respondent, the man filled out an application form (which was in English) for Respondent and "kept" the completed form. He then collected from Respondent $350.00. The man told Respondent that Respondent would be receiving his license "by mail." Respondent did nothing further (including taking the licensure examination) to obtain a Compliance Office-issued license for his air conditioning contracting business. Given what he was told by the man (whom he trusted) at the Compliance Office's downtown Miami location, Respondent did not think anything else was required of him, and he acted accordingly. Approximately a month after his visit to the Compliance Office, Respondent received what, on its face, appeared to be a Compliance Office-issued "competency card" indicating that his business, G & G Air Conditioning, Inc., had been issued an "A/C UNLTD" license, License No. 05M000987, with an expiration date of September 30, 2007, and that he was the "qualifying agent" for the business. Although Respondent did not realize it at the time, the "competency card" was a "fraudulent document." The Compliance Office had never in fact issued any license to Respondent or his air conditioning contracting business. Indeed, the Compliance Office had not even received a licensure application, or, for that matter, anything else, from Respondent (including the $350.00 he had paid for what he thought was an application fee). Reasonably, but erroneously, believing that the "competency card" was authentic, Respondent, with the assistance of a friend able to read and write English, completed and submitted the paperwork necessary to register with the Department so that he would be able to engage in the business of air conditioning contracting in Miami-Dade County. Respondent had picked up the application packet (the contents of which were in English) when he had visited the Compliance Office's downtown Miami location. Respondent's friend translated the contents of the application materials for Respondent. For each item requiring a response, Respondent told his friend what entry to make. The final page of the application materials contained the following "Attest Statement," which Respondent signed (after it was translated for him by his friend): I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought.[1] I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. Among the representations Respondent made in his completed application was that he possessed a valid "local competency card" issued by the Compliance Office. He believed, in good faith, but again, incorrectly, that the "competency card" he had received in the mail was such a card. In accordance with the instructions in the application materials, Respondent attached a copy of this card to his application. The Department received Respondent's completed application for registration on April 20, 2006. On May 23, 2006, the Department issued the registration for which Respondent had applied. Had the Department known that the "competency card" Respondent had attached to his application and had falsely, but not fraudulently, claimed to be valid was in fact a counterfeit that did not accurately represent the local licensure status of Respondent and his business, the Department would have denied Respondent's application for registration. Following a police investigation, two Compliance Office employees, along with a former Compliance Office employee, were arrested for selling "fraudulent licenses." The police alerted the Compliance Office of the results of its investigation in or around July 2006 (after the Department had already granted Respondent's application for registration). The Compliance Office thereupon conducted an audit, which revealed that Respondent was among those who had received a "fraudulent competency card" from the arrestees. Respondent was so notified by letter (sent by the Compliance Office). Prior to his receipt of the letter, Respondent had no idea that the "competency card" he had received in the mail was not what it purported to be. Had he known it was a "fraudulent document" he would have never applied for registration with the Department. The total investigative and prosecutorial costs incurred by the Department in connection with the instant case (excluding costs associated with any attorney's time) was $32.66.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order revoking Respondent's registration and requiring him to pay the Department $32.66 (representing the Department's investigative and prosecutorial costs, excluding costs associated with attorney time) for the violation of Section 489.129(1)(a), Florida Statutes, Section 455.227(1)(h), Florida Statutes, and Section 489.129(1)(m), Florida Statutes, described above that the Department alleged in its Administrative Complaint and subsequently proved by clear and convincing evidence at the final hearing. DONE AND ENTERED this 22nd day of October, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 22nd day of October, 2007.
Findings Of Fact Petitioner Albert Heisler is a residential air conditioning contractor licensed by Respondent Department of Professional Regulation, Construction Industry Licensing Board, an agency of the State of Florida. Petitioner is the qualifying agent for Residential Air Conditioning Corporation, which had fewer than 25 full-time employees and a net worth of less than two million dollars when charges were brought against Petitioner by Respondent. Further, at the time charges were brought, Petitioner's principal and only office was in Miami, Dade County, Florida, and his net worth was less than two million dollars. Petitioner had no employees who were not employees of the corporation. On July 24, 1986, Respondent filed an Administrative Complaint against Petitioner, seeking to take disciplinary action against Petitioner and his certified air conditioning contractor's license for alleged statutory violations arising from air conditioning work performed for June Davidson. On November 10, 1986, the Administrative Complaint was forwarded by Respondent to the Division of Administrative Hearings, pursuant to Petitioner's request for a formal hearing. The Administrative Complaint was assigned DOAH Case No. 86-4431. In compliance with the parties' request for hearing dates, on January 21, 1987, that case was scheduled for final hearing on February 16, 1987. On February 11, 1987, Petitioner filed with the Division of Administrative Hearings its Notice of Voluntary Dismissal Without Prejudice. On August 25, 1987, Respondent issued what it called an Amended Administrative Complaint against the Petitioner based upon the same facts related to the job performed for June Davidson. Although the Amended Administrative Complaint alleged additional statutory violations based upon the same set of facts, the Amended Administrative Complaint is the same "cause of action" as the Administrative Complaint previously dismissed by Respondent. The Amended Administrative Complaint was forwarded by Respondent to the Division of Administrative Hearings on October 9, 1987, and was assigned DOAH Case No. 87- 4452. The formal hearing on the Amended Administrative Complaint was conducted by the' undersigned on January 14, 1988, and a Recommended Order was issued by the undersigned on March 10, 1988. The Recommended Order entered in DOAH Case No. 87-4452 recommended dismissal of the Amended Administrative Complaint for three distinct reasons. First, the Construction Industry Licensing Board failed to determine probable cause prior to the filing of the Amended Administrative Complaint in accordance with the mandates of Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 1982). Second, the Department of Professional Regulation failed to prove that the person signing the Amended Administrative Complaint had been delegated the authority to do so by the agency head who was statutorily authorized to do so. Third, the allegations contained within the Amended Administrative Complaint were not well-founded and were not proven. Thirty-three days later, on April 13, 1988, the Department filed Exceptions to that Recommended Order. On May 12, 1988, the Construction Industry Licensing Board met and adopted the Recommended Order entered in DOAH Case No. 87-4452. The Board failed to enter a Final Order at that time. On July 8, 1988, Petitioner Albert Heisler filed with the Division of Administrative Hearings his Application for Award of Attorneys Fees and Costs. That Application was filed pursuant to the Florida Equal Access to Justice Act and contained the allegations required by that statute. The Application also alleged that the Board had failed to enter a Final Order within 90 days of the entry of the Recommended Order as required by Section 120.59, Florida Statutes. Thirty-eight days later, the undersigned entered an Order holding that the time by which the Department of Professional Regulation, Construction Industry Licensing Board, was required to respond in order to dispute the allegations contained in the Application as mandated by Rule 22I-6.035, Florida Administrative Code, had passed and, therefore, the allegations contained within the Application and its supporting documentation were deemed uncontroverted. That Order further noted that no final order had yet been filed. That Order further permitted Petitioner Albert Heisler 60 days in which to file a copy of the final order in order to complete the record in this cause. Ten days later, on August 25, 1988, Respondent Department of Professional Regulation, Construction Industry Licensing Board, filed a Motion for Reconsideration and/or Motion to Dismiss alleging that Petitioner Albert Heisler was not yet a "prevailing party" since no final order had yet been issued by the Construction Industry Licensing Board and no final order was attached to the Application for Award of Attorneys Fees and Costs. The Motion further alleged that the final order resulting from the Board's meeting of May 12, 1988, was incorrect on some matter and was rescinded by the Board. This allegation appears to have been false. On September 13, 1988, the Motion for Reconsideration and/or Motion to Dismiss was denied. Despite the efforts of Petitioner's attorneys and Respondent's attorneys in this cause to obtain a copy of the final order, their efforts were thwarted by the fact that the Construction Industry Licensing Board failed to enter a Final Order in DOAH Case No. 87-4452 until October 26, 1988. Petitioner Albert Heisler filed a copy of that Final Order in this cause on November 1, 1988. The Final Order entered by the Board on October 26, 1988, does not purport to be an amended final order nor does it represent that a previous final order was entered and vacated. Rather, the Final Order adopted the Findings of Fact contained in the Recommended Order, adopted the Conclusions of Law contained within the Recommended Order except where they were in contradiction with the Exceptions filed by the Department of Professional Regulation, adopted in toto the Exceptions filed by the Department, and dismissed the Administrative Complaint filed against Albert Heisler. The Exceptions state that the Department of Professional Regulation did not take exception to the recommendation that the case against Albert Heisler be dismissed, but that the Department was objecting to certain findings and conclusions of facts and law "as a matter of principle." The Recommended Order concluded, in accordance with general rules of statutory construction (an area in which the Construction Industry Licensing' Board has no special expertise), failure to prove a violation of a specific provision precludes finding a violation of a general provision for conduct prohibited by the specific provision. The Exceptions argue that a violation of a specific provision can also be a violation of a general provision, an argument which is legally correct, but irrelevant to the Recommended Order. Second, the Exceptions objected to the findings and conclusions in the Recommended Order that the probable cause proceedings were deficient and that the person signing the Amended Administrative Complaint had no authority to execute that document. While the Exceptions clothed those deficiencies as technical niceties, those deficiencies are jurisdictional, and the law related to them is not within the special expertise of the Construction Industry Licensing Board. The Prehearing Stipulation filed in DOAH Case No. 87-4452 raised as an issue the failure of the Construction Industry Licensing Board to determine probable cause before it filed the Amended Administrative Complaint in that cause. At the final hearing, the transcript of the probable cause panel was introduced in evidence by Albert Heisler. The Recommended Order contained findings of fact that the probable cause panel "rubber-stamped" the prosecutor's recommendation and failed to consider the presence or absence of probable cause. The Recommended Order further found that the Department of Professional Regulation failed to offer any evidence to controvert Heisler's evidence that the probable cause proceeding was of no legal effect. Based upon those findings of fact, the Recommended Order concluded that case law required dismissal of the Amended Administrative Complaint. Similarly, the Recommended Order contained factual findings that the Amended Administrative Complaint was signed by someone other than the agency head. Although that issue was set forth in the prehearing stipulation, the Department which has the burden of proof in any disciplinary proceeding, failed to offer any evidence indicating that authority to issue administrative complaints had been delegated by the Secretary of the Department of Professional Regulation to anyone else. The Exceptions which were legally incorrect were incorporated in the Final Order entered in DOAH Case No. 87-4452. Yet, the Final Order adopted the Findings of Fact contained in the Recommended Order without reservation, and none were modified to form a basis for approving the Exceptions. After the Final Order entered in DOAH Case No. 87-4452 was filed in this cause by Petitioner Albert Heisler on November 1, 1988, the undersigned requested a telephonic prehearing conference to address the status of this cause and the course of future proceedings in this cause. That telephonic conference call was conducted on November 18, 1988. Pursuant to the agreements and arguments of the parties during that telephonic conference, an Order was entered on November 21, 1988, establishing a deadline of December 9 for the submittal of proposed final orders in this cause. Both Petitioner and Respondent filed proposed final orders in this cause on December 9, 1988. On December 15, 1988, Attorney Stockwell on behalf of Petitioner Heisler filed correspondence with the Division of Administrative Hearings which reads, substantially, as follows: This office has received a copy of Respondent's Proposed Final Order in the above-referenced matter. Respondent raises therein for the first time an objection to the manner in which proof was adduced on the value of services rendered. Even during our phone conference on the future proceedings desired by the parties, Respondent did not raise any objection to the proof on the amount of attorney fees or request a hearing on the award. Nevertheless, Petitioner is agreeable to presenting live testimony directed to the value of the legal representation, if you wish to allow Respondent this opportunity. Accordingly, by Notice of Hearing dated January 9, 1989, this cause was scheduled for formal hearing on March 20, 1989, on the sole issue of the reasonableness of attorney's fees and costs sought by Petitioner Albert Heisler. At the final hearing, Petitioner Heisler appeared with documentary evidence and witnesses to testify as to the reasonableness of an award of attorney's fees and costs in this matter. The Department of Professional Regulation appeared with no witnesses and no evidence to offer. Rather, the Department stipulated that the services rendered and itemized in Petitioner's Exhibit numbered 1 in this cause were necessary and reasonable, that Heisler's attorneys' hourly rates are reasonable, that the fees were incurred by Heisler and Heisler is responsible for payment of those fees, and that the costs sought to be reimbursed by Heisler were reasonably and necessarily incurred. Petitioner Albert Heisler's arrangement with his attorneys calls for Heisler to pay his attorneys based upon an hourly rate, as a minimum, but further provides that his attorneys would be paid any amount awarded to them as a reasonable attorney's fee. No evidence of any appeal from the Final Order entered in DOAH Case No. 87-4452 has been submitted, and the time for appeal has expired. There is no circumstance which would make the award sought herein unjust. The disciplinary actions of the Department of Professional Regulation and the Construction Industry Licensing Board initiated and prosecuted against Petitioner were substantially unjustified. Petitioner Albert Heisler is a prevailing small business party. According to the itemized affidavit of Petitioner's attorneys which reveals the nature and extent of the services rendered as well as the costs incurred, Attorney Turner has expended 58.75 hours for which Petitioner Heisler has agreed to pay him $150 per hour. Forty-three and one-half of those hours were for services performed after August 25, 1987. Attorney Stockwell has expended 70.05 hours on behalf of Petitioner Heisler for which he has agreed to pay to her the sum of $100 per hour. Of the 70.05 hours, 61.3 hours were for services performed after August 25, 1987. Although 74.05 total hours were claimed on behalf of Attorney Stockwell, an examination of the itemized breakdown of services rendered shows that four of those hours for services performed after August 25, 1987, are not reimbursable, since 1.5 hours of Stockwell's time was clearly related to a different matter involving Petitioner Heisler and since 2.5 hours reflect the initials of persons other than Attorneys Turner and Stockwell, and no evidence was presented to indicate that DKM or CAB are attorneys who rendered legal services. A computation of the number of hours of legal services subsequent to August 25, 1987, times the hourly rate produces the sum of $12,655. Additionally, Petitioner's Exhibit numbered 1 reveals costs in the amount of $686.90 as of May of 1988, and costs in the additional amount of $122.90 as of the time of the final hearing in this cause. No evidence was offered in support of the criteria established by case law and embodied in Rule 4-1.5(B), Rules Regulating the Florida Bar, for establishing an award of reasonable attorney's fees. Accordingly, a reasonable amount for attorney's fees and costs in this matter is $13,464.80, which is based upon the hourly rate for services rendered after August 25, 1987, plus the total of the costs incurred.
