The Issue Whether the Respondent committed the offenses set forth in the administrative complaint filed in this case and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Michael Rada was a certified general contractor, the qualifying agent for A-Team Remodeling and Design, Inc. and held license number CG C026705 of the Florida Construction Industry Licensing Board. On or around December 10, 1987, Mrs. Katherine Hill contracted with A- Team Plumbing, Inc. to renovate a bathroom in her home. A-Team Plumbing, Inc. is an entity separate and distinct from A-Team Remodeling and Design, Inc. and Mr. Rada was not associated with A-Team Plumbing, Inc. Following A-Team Plumbing, Inc.'s failure to complete the job, Mr. Rada, on behalf of A-Team Remodeling and Design, Inc. agreed with Mrs. Hill to re-do the job. Mr. Rada, as qualifying agent for A-Team Remodeling and Design, Inc., applied to the City of Plantation for the building permit on January 11, 1988, and it was issued on February 13, 1988. At the instruction of the City of Plantation, the job was gutted, and Mr. Rada began his work sometime in March, 1988. The job should have been completed in two to three weeks, but was not completed until May 6, 1988. During construction, Mr. Rada's work was erratic and at times dilatory. On several occasions, he made appointments to work on the job, necessitating Mrs. Hill's absence from her employment, and, then, he would not keep the appointments or even contact Mrs. Hill about his failure to report. In addition to having failed to complete the job in a timely manner, the proof demonstrated that when completed the work failed to conform to that standard existent in the community for similar work. Even after the final inspection, a hole remained in an adjoining closet wall, the base boards were not flush with the walls and "gop" hung down in one corner of the room. Mrs. Hill refused to pay for the job because of her dissatisfaction. As general contractor, Mr. Rada assumed responsibility for the completion of the job at the time of his initial visit to Mrs. Hill and his application for the building permit. By failing to complete the job in a workmanlike and timely manner, Mr. Rada's performance was incompetent and exemplified misconduct in the practice of contracting.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on Respondent an administrative fine of $750. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of July 1989. JANE C. HAYMAN 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 28th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-187 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Subordinate to the result reached. Addressed in paragraph 2. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached 2. Subordinate to the result reached. In part, subordinate to the result reached; in part, addressed in paragraph 3. Addressed in paragraph 3. Subordinate to the result reached. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraphs 3 and 4. In part, addressed in paragraphs 4 and 5; in part, subordinate to the result; in part, not supported by competent and substantial evidence. In part, subordinate to the result reached; in part, addressed in paragraphs 4 and 5. In part, subordinate to the result reached; in part addressed in paragraph 2. Subordinate to the result reached. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Michael Rada, pro se 4576 Northwest 16th Terrace Tamarac Lakes, Florida 33304 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Rule 21E-12.08, Florida Administrative Code, a rule of the Construction Industry Licensing Board, was adopted in compliance with the procedural requirements of Chapter 120, Florida Statutes. This rule was effective on January 6, 1980, and was amended on December 19, 1982. On or about January 19, 1983, an order of the Construction Industry Licensing Board imposed fines of $2,000 on each of the Petitioners. This order did not specify a time certain by which these fines were to be paid. This order was appealed, and on or about April 4, 1984, a Mandate was issued by the Fourth District Court of Appeal which affirmed the order. On or about April 12, 1984, the Executive Director of the Construction Industry Licensing Board hand-delivered to each of the Petitioners a letter dated April 12, 1984, which stated in part "You shall pay an administrative fine in the amount of $2,000 within 30 days to the Executive Director, Florida Construction Industry Licensing Board. " These fines have not been paid. Rule 21E-12.08, Florida Administrative Code, cites as authority therefor Sections 455.227(2) and 489.129(2), Florida Statutes.
The Issue Whether Respondent, Ronald Mustari, violated Section 489.129(1)(r), Florida Statutes, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against Respondent's license to practice contracting.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Ronald Mustari, was a certified residential contractor, having been issued license number CR C036684 by the Florida Construction Industry Licensing Board in 1986. On or about April 29, 1991, Respondent was licensed as the qualifying agent for Whitehall Development Corporation (Whitehall Development), and served in this capacity at all times material to this proceeding. As the qualifying agent, Respondent was responsible for all of the contracting activities of Whitehall Development. Furthermore, at all times pertinent hereto, Respondent was president of Whitehall Development. On or about October 9, 1989, Whitehall Development entered into a subcontract agreement with Anchor Air Conditioning, Inc. (Anchor Air Conditioning), whereby Anchor Air Conditioning would provide services for Whitehall Development. Subsequently, a dispute arose between Anchor Air Conditioning and Whitehall Development regarding the subcontract agreement. As a result thereof, in 1993, Anchor Air Conditioning filed a civil complaint against Whitehall Development in the Manatee County Circuit Court, Case No. CA-93-4210. The complaint alleged that Whitehall Development owed money to Anchor Air Conditioning pursuant to the terms of the subcontract agreement. Whitehall Development contested liability and responded by filing counterclaims against Anchor Air Conditioning. After contesting the issue of liability for more than two years and incurring more than $20,000 in attorney fees, Respondent concluded that continuing to litigate this matter was not a viable option given Whitehall Development's insolvency at that time. Furthermore, Respondent determined that it would be futile for Whitehall Development to pursue its counterclaims in the civil matter because Anchor Air Conditioning was insolvent. On May 9, 1996, the Circuit Court for the Twelfth Judicial Circuit in and for Manatee County, Florida, entered a Final Judgment in Case Number CA-93-4210, in favor of Anchor Air Conditioning against Whitehall Development in the amount of $18,118. The Final Judgment was the result of a negotiated, stipulated Settlement Agreement entered into between Whitehall Development and Anchor Air Conditioning. Currently, Whitehall Development has no funds or assets and is no longer doing business. In 1992, and prior to Anchor Air Conditioning's filing the complaint against Whitehall Development, the Internal Revenue Service placed a lien on all property and rights to property owed to Anchor Air Conditioning. The lien was to cover outstanding assessments owed by Anchor Air Conditioning to the Department of Treasury-Internal Revenue Service for the tax periods ending December 31, 1988; December 31, 1989; and June 30, 1990. In September or October 1992, Whitehall Development received a copy of Notice of Levy dated September 25, 1992. According to the Notice of Levy, Whitehall Development was required to pay any money it owed to Anchor Air Conditioning to the Internal Revenue Service. As of June 13, 1997, this Notice of Levy remained in effect. As of the date of the final hearing in this matter, Whitehall Development has not satisfied the Final Judgment in Case No. CA-93-4210. Whitehall Development has failed to pay the funds due and owing to Anchor Air Conditioning pursuant to the Final Judgment to the Internal Revenue Service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding that Respondent violated Section 489.129(1)(r), Florida Statutes; imposing a fine of $1,000; placing his license to practice contracting on probation, under such terms and conditions as prescribed by the Construction Industry Licensing Board; and assessing the costs associated with the investigation and prosecution of this case. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Robert E. Messick, Esquire Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A. 2033 Main Street, Suite 600 Sarasota, Florida 34237 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
The Issue Whether the Respondent, Emilio R. Pinero, P.E., committed the offenses alleged in an Administrative Complaint issued March 26, 2001.
Findings Of Fact At all times material to the allegations of this case, the Respondent, Emilio R. Pinero, P.E., has been registered as a licensed engineer in the State of Florida, license number PE 48352. The Petitioner is the entity charged by the State of Florida to regulate the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. Prior to July 3, 2000, organizers for a festival sought a building permit to erect a stage, ramp, and grandstand to be constructed from wood. The permit request was made to the Miami-Dade County Building and Zoning Department and was rejected, as it was neither signed nor sealed by a qualified person. When later contacted by the festival organizers, the Respondent agreed to prepare the necessary documents in order for them to obtain the building permit. At the Respondent's direction, Mr. Rodriguez prepared drawings and calculations for the festival organizers. Mr. Rodriguez is not licensed or registered to perform engineering in the State of Florida. Although he was trained in Cuba and Germany, Mr. Rodriguez utilized improper engineering criteria to calculate the information needed for the subject permit. In fact, the formulas, drawings, and structures described in the permit documents were "meaningless." For reasons not fully explained in this record, the Respondent signed and sealed the permit documents. The festival organizers then submitted the erroneous documents to the Building and Zoning Department so that the permit might be issued. It was not. Instead, the building official rejected the plans and refused to issue the permit. Although the original documents no longer exist, Mr. Valdes was certain that the papers he reviewed were signed and sealed by the Respondent. It is undisputed that the Respondent signed the papers submitted for the permit. Copies in existence do not reproduce the raised portion of the seal. The Respondent does not recall placing his seal on the documents. Mr. Rodriguez did not believe the documents were placed under seal. Nevertheless, the Respondent maintains that the drawings were only preliminary and would have been corrected had the Building and Zoning Department returned them. To the contrary, it is determined that the Building and Zoning Department, as a matter of policy and practice, does not correct plans and calculations under the circumstances described in this case. The calculations and drawings were rejected and a permit was not issued. No public harm resulted from the use of the calculations and drawings as they were not utilized by the festival organizers. The Respondent admitted that the wrong engineering criteria were applied in the preparation of the calculations and drawings. The Respondent is currently 78 years of age. He no longer engages in the field of structural engineering, and he rarely prepares calculations and drawings for the purpose of issuance of building permits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order reprimanding the Respondent for negligence in the performance of his duties, imposing an administrative fine in the amount of $1,000.00, and placing him on probation for a period of two years. DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. 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 31st day of October, 2002. COPIES FURNISHED: Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts,III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Arnaldo Velez, Esquire Arnold Velez, P.A. 35 Almeria Avenue Coral Gables, Florida 33134 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
The Issue Whether Respondent, William T. Cooper, pled guilty to acts which directly relate to the practice of engineering or the ability to practice engineering within the meaning of Subsection 471.033(1)(d), Florida Statutes, and, if so, what penalty should be imposed on his license to practice engineering.
Findings Of Fact Respondent, William T. Cooper (Respondent), is and has been at all times material to this matter, a licensed professional engineer in the State of Florida having been issued License No. PE 20462. On March 22, 2000, Respondent was charged by criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. That indictment contained twelve separate counts. On August 29, 2000, Respondent entered a Plea Agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Respondent entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida. The amount of restitution is equivalent to the amount of the fees that Respondent was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One though Six and Counts Nine through Twelve against Respondent, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Respondent "admits the facts of the charge." Counts Seven and Eight of the indictment charged Respondent with two counts of Grand Theft, in the first degree, and both counts provide in relevant part the following: WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use or endeavor to obtain or use U.S. Currency or other property with an equivalent value to-wit "delinquency days" with a value of $100,000 or more, the property of another to-wit Florida Department of Transportation, hereinafter FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false and fraudulent charges or claims or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. Count Seven relates to Project Number 36210-3439 on Interstate 75 (I-75) in Marion County, Florida, and to activities which allegedly occurred between January 30, 1996, and January 30, 1998. Count Eight relates to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 (I-75) in Marion County, Florida, and relates to activities which allegedly occurred between July 16, 1997, and March 17, 2000. The indictment arose out of certain work performed by Respondent after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages, and to testify regarding those matters in depositions and, if necessary, at trial. Respondent was not retained by the law firm to work as an engineer. Prior to retaining Respondent, the attorneys who represented White Construction Company had retained several engineering firms to identify and analyze all the engineering issues. The attorneys who retained Respondent spent an amount in excess of $120,000.00 for those services performed by those engineering firms. Moreover, as a result of the engagement of those engineering firms and the work they performed, the engineering issues had already been identified before the Respondent was retained. During the time he was retained by the law firm that was representing White Construction Company, Respondent went to the job sites, the I-75 road improvements in North Central Florida, a total of three times. The largest continuous time the Respondent was on the construction site was four hours. In order to do the work that the law firm had retained him to do, prepare cost evaluations and calculate cost damages, Respondent received and relied on the information provided by the engineers, as well as information provided by White Construction Company and the Florida Department of Transportation. Respondent did not identify or analyze engineering issues. Rather, his responsibility was to take the analysis of various engineering issues that had been done by the engineering firms and to calculate the claim cost. In carrying out this responsibility, Respondent was not allowed to question the calculations performed by the engineers. Respondent had no knowledge that the information provided to him was in any way a misrepresentation of the truth. Since the time Respondent calculated those claims, he learned that there had been false representations made by White Construction Company. For example, Respondent later learned that statements made to him regarding equipment and labor that were on the jobs for which he prepared claims were not on the subject jobs. The attorneys that retained Respondent requested that he prepare the claims both with concurrences and without concurrences. Respondent complied with this request and sent the claims to the law firm. A "concurrency" refers to an instance where the same labor and equipment used for one or more projects are reported on two or more claims with overlapping periods of time. For example, a contractor may submit a claim for June through August, after which he submits another claim for August though December, and, finally, he submits a claim that covers the middle of December to January. The concurrency occurs if the same labor and equipment costs included in the first claim are also included in an overlapping time period in the second claim. If the labor and equipment costs in the second period are also included in an overlapping time period in the third claim, there is concurrency with respect to the labor and equipment costs that have been included on both claims for the same time period. It is a customary practice in claims preparation for contractors to ask a claims preparer to prepare separate claims that include the concurrencies as well as to prepare claims with the concurrences taken out. When the claims include concurrencies, someone must go back and take the concurrencies out. The owner or contractor decides who will be responsible for doing this. In this case, the law firm that retained Respondent requested only that he prepare the claims with concurrencies and those without concurrencies. The claims preparer does not submit the claims and has no control over which claims the contractor presents for payment. The claims which were at issue in the underlying legal proceeding were not submitted by Respondent. The claims prepared by the Respondent and certified and presented to the Florida Department of Transportation by White Construction Company totaled $30 million. However, the claims prepared by Respondent could only have totaled $30 million if all the concurrencies remained in all the claims. Respondent never submitted claims to the Florida Department of Transportation or otherwise indicated to the Department that White Construction Company was entitled to the total amount of the claims including the concurrencies. James D. Eckert, Esquire, was qualified and accepted as an attorney who is an expert in the field of criminal law and criminal defense. Mr. Eckert represented Respondent in matters related to the criminal indictment referenced in paragraph 2. He took discovery with regard to Counts Seven and Eight but never found any evidence that incriminated Respondent. The reason Respondent entered a plea of guilty to Counts Seven and Eight of the criminal indictment was for reasons other than he was guilty. Mr. Eckert recommended that Respondent enter a plea because of several compelling factors. These factors included the following: the Statewide Prosecutor was offering to withhold adjudication; the trial would have lasted at least six weeks and cost Respondent more than $150,000.00; all witnesses who could corroborate Respondent's innocence had announced that they were invoking the Fifth Amendment and would not testify; and the Plea Agreement was intended to be a total settlement of the entire situation. Both the Florida Department of Transportation and the Florida Department of Law Enforcement agreed to the terms of the plea agreement. As support for its position in this case, Petitioner relies on a few excerpts from the more than 700-page deposition transcript of Respondent taken in 1998, and its witnesses interpretation of that deposition. According to testimony presented by Petitioner, one basis of the charge against Respondent was that, at the deposition in the underlying civil action between White Construction Company and the Florida Department of Transportation, Respondent was "introduced as the engineer for White Construction Company that was most knowledgeable about claim issues that were submitted to the Department in the damage lawsuits in addition to his representations in depositions." A review of the deposition transcript, however, reveals that Respondent was not introduced as an engineer, but was represented as the person most knowledgeable about the claim damages. Petitioner also presented testimony that, with regard to claims preparation, Respondent was acting as an engineer to the extent that he was involved in "technical issue identification and development." No specific facts were given to support this general statement or the allegations in the Amended Complaint. The evidence presented by Petitioner did not establish that the conduct described in paragraphs 25 and 27, even if true, was the same conduct that was the basis of Counts Seven and Eight of the indictment. Moreover, Petitioner failed to show that, in either case, Respondent was acting as an engineer or that the conduct was directly related to the practice of engineering or the ability to practice engineering. Engineering education, training, and experience are not necessary or required to prepare claims and cost damages. This is evidenced by the fact that there are many people who prepare claims such as the ones prepared by Respondent and who use the same methodologies that were used by Respondent but who are not engineers. There was no evidence presented to support the allegation in the Amended Administrative Complaint that the acts to which Respondent pled guilty directly relate to the practice of engineering or the ability to practice engineering. Respondent has been licensed as a professional engineer since 1974. Except for the complaint that is the subject of this proceeding, Respondent has never had a complaint filed against his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order dismissing the charges in the Amended Administrative Complaint against, Respondent, William T. Cooper. DONE AND ENTERED this 6th day of January, 2003, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 6th day of January, 2003. COPIES FURNISHED: David P. Rankin, Esquire Law Offices of David P. Rankin, P.A. 3837 Northdale Boulevard, Suite 332 Tampa, Florida 33624 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Natalie A. Lowe, Executive Director Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
