The Issue The issue in this proceeding is whether Respondent's roof construction license should be disciplined for alleged violations of Chapter 489, Florida Statutes.
Findings Of Fact Ronnie L. Barfield is and was a certified roofing contractor doing business under the name of Gulf Coast Roofing Company during all times material to this cause. His principal place of business is in Panama City, Florida. Bobby and Laura Oswald's roof on their residence located at 20520 Jacaranda Road, Miami, Florida, was damaged by Hurricane Andrew on August 23, 1992. After Hurricane Andrew, Mr. Barfield went to the Miami area to do subcontract work. He registered with the Metro-Dade County Construction Licensing Board. At the time of the repairs in question, no permits were required on jobs for the period immediately following Hurricane Andrew. While in Miami, Mr. Barfield did a roofing job on a Texaco service station where Mr. Oswald worked. Mr. Barfield's employees consisted of his brother, Billy, and two laborers, Larry and Bobby. All were from Panama City. As they were completing the Texaco job, Mr. Barfield's semi-estranged son, Ron, showed up on September 22 and again on September 23. When Mr. Barfield stopped by the Texaco job on September 23, his son told him that he had made arrangements with Mr. Oswald to meet the insurance adjuster at the Oswald residence. Ron asked his father to go with him to the Oswald residence. Mr. Barfield agreed and followed his son in a separate vehicle to the Oswald residence since he did not know where it was. Mrs. Oswald knew Mr. Barfield to be the owner of Gulf Coast Roofing Company. She had gained this information through conversations she had had with her husband during the Texaco station's roof repairs. Mr. Barfield was at the Oswald residence approximately thirty to forty-five minutes. While there, he helped the insurance adjuster measure the roof. He denies having any direct conversation with Mrs. Oswald but states that he was present when the adjuster was talking to Mrs. Oswald about what needed to be done on the roof and the amount she would receive for the work. On the other hand, Mrs. Oswald states that in her presence, Mr. Barfield directed his son to prepare the contract and to make sure she was taken care of. She states Mr. Barfield then left to go to another job. However, Mr. Barfield was leaving to return to Panama City because he was seriously ill. Before Mr. Barfield left to return to Panama City, he agreed to rent his equipment to his brother, Billy. This was an oral agreement and is not evidenced by any writing. After Mr. Barfield left the premises, his son prepared a contract on a Gulf Coast Roofing quotation sheet he had somehow obtained. The son agreed to do the repair work for $16,300. Mrs. Oswald paid him $8,150 cash to start the job. No one other than Mr. Barfield is permitted to bid, quote, or contract any work on behalf of Gulf Coast Roofing. The quotation pads and contracts are in all of Gulf Coast's trucks so that Mr. Barfield can give quotes and write contracts quickly when he is doing a job. The quotation sheets and contracts are in every vehicle because he never knows what vehicle he is going to be in, and he frequently is asked for a quote to re-roof another home when he is doing a job in a neighborhood. As indicated earlier, Mr. Barfield was seriously ill and had been for several days. Upon leaving the Oswald residence, he drove to Panama City, Florida, where according to hospital records, he was admitted to the Gulf Coast Community Hospital the next morning, September 24, at 10:30 a.m. for surgery. To the contrary, Mrs. Oswald states that Mr. Barfield showed up on the job the following morning and specifically said to her, "Are you satisfied we are out here early and starting the job quick, first?" and that before he left, he told his brother Billy "to make sure she was happy with everything." However, because of the discrepancies between the testimony and the independent hospital records, Mrs. Oswald's testimony is not credible. While the crew was working on the roof, Mrs. Oswald took a picture of the crew and of the truck they were using. The truck had "Gulf Coast Roofing" on the side of it. When Mr. Barfield was shown the picture, he identified his brother, his son, and the two workers Respondent had brought with him to Miami. There were two others on the roof whom he did not know, did not employ, and did not pay. Mr. Barfield did not employ any of these people on the Oswald job and did not have a contract with the Oswald's for the roofing job. The job was completed on October 2, 1992. The evidence did not demonstrate any inadequacies or deficiencies relating to the roofing repair on the Oswald residence. The remainder of the contract price was paid to Mr. Barfield's son in cash. The cash was derived from a check of Mrs. Oswald's payable to cash, in the amount of $8,150. The check was negotiated at the bank on the date of payment to Mr. Barfield's son. Prior to making the final payment on the contract, Mrs. Oswald had received a check from her insurance carrier for the amount of the final payment, of $8,150. The check was dated September 28 and made payable to Robert B. Oswald, Laura J. Oswald, and Gulf Coast Roofing Company. The check was endorsed by the Oswald's and by Mr. Barfield's son on behalf of Gulf Coast Roofing. Since Mr. Barfield's son was not an authorized signatory on the account, the bank refused to cash the check. Mr. Barfield's son fraudulently suggested that he take the check to Panama City, have his father endorse it, return the check to the Oswald's or deposit the check, and issue a cashier's check for a like amount. Mrs. Oswald agreed to let Mr. Barfield's son take the check to Panama City. Ms. Oswald's release of the check to Mr. Barfield's son occurred about three or four days after the last payment was made to Mr. Barfield's son. On October 14, 1992, the check was negotiated with Cars and Trucks of Bay County, Inc. The check was never endorsed nor deposited by Mr. Barfield or Gulf Coast Roofing. Mr. Barfield's son apparently took the money. Mrs. Oswald testified that prior to releasing the check to Mr. Barfield's son, she talked to Mr. Barfield, who agreed to endorse it for return to her or to deposit it and issue her a cashier's check. In support of this, she offered her telephone bill which showed a call to Mr. Barfield on October 17, 1992, that lasted fifty-nine minutes. However, this conversation, based on the record submitted, occurred after the check was released to Mr. Barfield's son and cashed. When faced with this circumstance, Mrs. Oswald stated there were many conversations with Mr. Barfield before and after the check was turned over to Mr. Barfield's son and that Mr. Barfield agreed to return the money to her, and in one of her conversations, he told her his son had the money and was on his way back with it. There were no additional phone bills submitted to support the claim of numerous phone calls. Mr. Barfield was in the hospital from the day the work started on September 24 until after it was completed on October 2. Mr. Barfield was released from the hospital on October 7. During his stay in the hospital, he did not have any conversations with any of the people who worked on Mrs. Oswald's roof, including his son or his brother. Mrs. Oswald, however, states that Mr. Barfield talked to the crew every day and that she took them to a convenience store so they could talk to him from a pay phone. She identifies the other person on the telephone as Mr. Barfield because of their reference to him as "Ronnie" or "Daddy." Again, because of the discrepancies between Mrs. Oswald's testimony and the hospital records, Mrs. Oswald's testimony is not credible. When Mr. Barfield's son returned to Miami, Mrs. Oswald confronted him and asked him for her money, and he told her that his father did not give it to him. Mr. Barfield did not have any knowledge of the check until Mrs. Oswald told him about it in the telephone conservation on October 18. In that conversation, he told her he would try to help her get her money back from his son, and when he was not able to do this, he told her that he could not help her. Around the first of November, after Mr. Barfield was released from the hospital and permitted to travel, he returned to Miami to get his equipment. He arrived mid-afternoon and left the next day. Mrs. Oswald stated that he was there for four or five days and that she had several conversations with him about the money, and on each occasion he said that as soon as he got some money off of his other jobs he would pay her. Mr. Barfield testified he did not have any other jobs, and that he told her he could not do anything for her. Again, Mr. Barfield's testimony is more credible. Lastly, Mrs. Oswald says Mr. Barfield executed a Waiver of Lien Affidavit while he was in Miami on November 1, 1992. Though Mr. Barfield admits he was in Miami around the first of November, he denies he signed the Waiver of Lien while he was there, or that he ever signed one in the presence of a Notary Public, as reflected by the Waiver of Lien form. However, he admitted signing a Waiver of Lien Affidavit after it was requested on two different occasions by the bank. Before signing the Waiver, he explained to them that he did not do the job, that he did not know whether there were any liens for materials, but that he would sign it to help Mrs. Oswald. Upon its execution, he mailed the affidavit to the bank in the return envelope provided. Given these facts Mr. Barfield did not undertake the Oswald contract by signing the affidavit. The only witness for the Petitioner was Mrs. Oswald. The only witness for the Respondent was Mr. Barfield. Mr. Barfield's brother, Billy, died in September 1996. The son could not be located. The two witnesses have very different stories of the events before and after the repairs to Mrs. Oswald's roof. However, Mr. Barfield had independent evidence that corroborated his version of the facts. Therefore, Mr. Barfield's testimony is found more credible than Mrs. Oswald's testimony, and it is found that Respondent did not have a contract with the Oswald's, did not receive money from the Oswald's, and did not violate any of the provisions of Chapter 489, Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That these proceedings be dismissed against the Respondent. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 28th day of August, 1997. COPIES FURNISHED: Rowlett W. Bryant, Esquire Bryant and Higby Post Office Box 860 Panama City, Florida 32402 John O. Williams, Esquire Boyd, Lindsey, Williams and Branch, P.A. Post Office Box 14267 Tallahassee, Florida 32317 Rodney Hurst, Executive Director Department of Business and Professional Regulation Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent has been registered as a specialty contractor in Florida, having been issued license number RX-00492l2. He has also been, and continues to be, the qualifying agent for Stretch and Seal, Inc. On July 10, 1986, Emmanuel E. Cabral entered into a contract with Stretch and Seal, Inc., for cleaning of the roof on his residence in Inverness, Florida, application of a base coat and finishing coat of Stretch and Seal on the entire roof (approximately 1,518 square feet), coating of all vents and roof edges, and coating where his flat roof meets the shingle portion of his roof. The total contract price was $1,600. Richard J. Cummings executed this contract on behalf of Stretch and Seal, as "authorized signature." Cummings is not licensed by the Construction Industry Licensing Board. The Cabral contract provided a ten year warranty, and specified that, "All material is guaranteed. . . . All work to be completed in a workmanlike manner according to standard practices." The warranty was signed by Respondent, as President of Stretch and Seal, Inc. Cabral made three payments in July and August, 1986 in the total amount of $1,600 for work performed on his roof pursuant to his contract with Stretch and Seal, Inc. These payments were by checks payable to "John P. Terranova." Cummings had instructed the Cabrals to make the payments directly to Respondent. At hearing, Respondent admitted receiving and cashing these checks. On August 12, 1986, Emmanuel Cabral executed a Customer Work Acceptance and Job Rating Form which indicates he considered the work performed on his roof to be "satisfactory." This is the lowest rating shown on the form other than a general category marked "other." The Cabrals responded to a newspaper ad about Stretch and Seal which featured Respondent, and which stated the product "protects roofs" and "stops most annoying leaks." The toll free phone number in the ad is the same one that is printed on the Stretch and Seal contract which Mr. Cabral eventually signed. When Richard Cummings came to their house to explain the product, he presented the Cabrals with a flyer describing Stretch and Seal as a "new roof sealer" that "stops leaks and protects your roof." At the time they contracted with Stretch and Seal, Inc., the Cabrals' roof did not leak. Mrs. Anna Cabral testified that they were interested in insulating their roof to help the house stay cooler. The newspaper advertisement and flyer that Cummings gave them represented that the product reduces energy costs, reflects the sun's rays and insulates, plus reduces noise from wind and rain, and Mr. Cabral contracted with Stretch and Seal, Inc., based upon these representations. The Cabrals' roof began to leak in October, 1986 and additional leaks continued to appear throughout their house through November, 1986. Mrs. Cabral made repeated efforts to contact Respondent or Cummings, and although workmen did appear at their house on one occasion, the Cabrals were not home, and therefore no repair work was done. Respondent failed to honor the warranty given on this job in any way. Eventually, the Cabrals had to have their roof entirely redone by another roofing company, at a cost of $2,300. No local permit was obtained for the work performed on the Cabrals' roof, although a permit is required by the applicable local building code for any improvements to property valued at more than $300, except painting. Respondent presented two defenses. First, he maintained that the product applied to the Cabral roof is simply a paint, and not a sealant, insulator, or weatherproofing agent. Representations about the product made by Respondent in newspaper ads and by his authorized agent to customers do not support Respondent's assertion at hearing. Competent substantial evidence was not presented at hearing by Respondent to rebut the clear and convincing evidence presented by Petitioner that the product applied to the Cabral roof was represented to be a sealant, insulator and weatherproofing agent. Second, Respondent maintained that he had sold the Stretch and Seal "area distributorship" to Cummings prior to this job with the Cabrals. Therefore, he argued he was not responsible for the work that Cummings performed. While Cummings did the actual work on the Cabral roof, and signed the contract with Mr. Cabral, Respondent was, and still is the qualifying agent of Stretch and Seal, Inc. It was Respondent who signed the Cabrals' warranty, and received and cashed their checks in payment for this job. The distributorship agreement between Respondent and Cummings, executed in December, 1985, specifically recites and acknowledges Cummings' responsibilities under the agreement in consideration for Respondent "using his licenses." Thus, it is clear that Stretch and Seal, Inc., continued to do business and to operate under Respondent's license, with him as qualifying agent, even after the distributorship agreement was executed.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order revoking Respondent's specialty contractor registration for violating Sections 489.105(4), 489.115(1)(b), 489.117(2), 489.119, and 489.129(1)(d),(j) and (m), Florida Statutes. DONE AND ENTERED this 5th day of February, 1988, in Tallahassee, Florida. DONALD D. CONN 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 5th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4010 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as unnecessary. Adopted in Findings of Fact 2-4. 4-5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 7. 7-8. Adopted in Findings of Fact 3, 8. Acted in part in Finding of Fact 9, but otherwise Rejected as not based upon competent substantial evidence. Adopted in part in Finding of Fact 8, but otherwise Rejected as not based upon competent substantial evidence. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John P. Terranova 3 Birdie Lane Palm Harbour, Florida 33528 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner was unlawfully terminated from his employment with Respondent based upon his age and in retaliation for protected activity; and, if so, what is the appropriate remedy.
Findings Of Fact In June 2016, Petitioner, a 58-year-old man, responded to an advertisement for laborers posted by Aerotek, an employee leasing company. Petitioner was hired and told he would be placed as a general laborer with Advanced Roofing for a solar panel installation job at the Lake Worth landfill. Petitioner attended a safety orientation presented by Advanced Roofing in June but was not actually placed at the job site until August 1, 2016. Advanced Roofing is a roofing company that employs approximately 380 workers for commercial roofing jobs, HVAC, and solar panel installation throughout Florida. It also contracts with Aerotek and CLP, employee leasing companies, to supply laborers to specific job sites on an as needed basis. Advanced Roofing has an agreement with Aerotek to pay designated hourly wage rates to Aerotek based upon job classification. It is up to the discretion of Aerotek to determine what wages are paid to individual laborers. Petitioner's Employment at Advanced Roofing's Job Site Based upon Petitioner's prior experience, he was classified by Aerotek as a general laborer and assigned by Advanced Roofing to supervise a crew for the pouring of concrete pillars. He reported to, and received direction from, Advanced Roofing's site supervisor, Paul Burns. Petitioner received an hourly wage from Aerotek in the amount of $13.00 per hour. Shortly after beginning work with Advanced Roofing, Petitioner complained repeatedly to Mr. Burns that he should be paid more based upon his experience and the fact that he was asked to supervise others. Mr. Burns explained that Advanced Roofing does not control what Aerotek pays its workers but that he would speak to Aerotek about a possible raise. Petitioner discussed his pay concerns with co-worker Allen Andrews, who was approximately 30 years old. Mr. Andrews told Petitioner he thought he (Mr. Andrews) too should be paid more based upon his skill set. In fact, Mr. Andrews apparently addressed this issue with Aerotek and received a pay raise from Aerotek to $15.00 per hour. After Mr. Andrews showed Petitioner his pay stub, Petitioner asked Mr. Burns whether Mr. Andrews was being paid more because he was younger. Petitioner believes Mr. Andrews received the requested raise despite being less qualified than Petitioner and holding no license or certification. However, Respondent's Exhibit 1 shows that Mr. Andrews was classified as an "electrical helper" by Aerotek and had prior electrical conduit experience that Petitioner did not have. On October 3, 2016, Petitioner sent a text message to his immediate supervisor, Ray Mason, at 4:13 a.m., advising he was coming back to town from Orlando and would be arriving late for work that day. Petitioner explained that the laborers were instructed to call in as soon as they knew they would be late or absent. At 5:50 a.m., Mr. Mason replied, "Do you see what time it is man? You just cut my sleep. Don't come back." Over the course of Petitioner's assignment to Advanced Roofing from Aerotek, Petitioner, by his own admission, missed at least three days of work. According to Advanced Roofing, Petitioner missed five days of work during that time and was repeatedly late. Although Petitioner testified that other younger workers routinely missed work or came in late without calling in and without consequence, he offered no corroborating evidence. Prior to his termination, Petitioner received no counseling or written discipline regarding performance or attendance. On September 28, 2016, Advanced Roofing contacted Aerotek to supply four more workers to the Lake Worth site due to concerns regarding slowing productivity. Advanced Roofing dismissed several workers in addition to Petitioner on October 3, 2016, based on absenteeism and decreased productivity. After being dismissed by Advanced Roofing, Aerotek offered to place Petitioner elsewhere. Because it would be approximately eight weeks before Aerotek would have another assignment for Petitioner, he declined reassignment and accepted a settlement package. Allegations of Drug Use and Safety Hazards After he was told not to return to Advanced Roofing, Petitioner contacted the City of Lake Worth by email to complain about drug use, intoxication, and fighting among employees. Petitioner also wrote Rob Kornahrens, Advanced Roofing's president, making similar allegations and detailing how workers were instructed by supervisors how to pass drug tests by pinning a condom with clean urine from another person to the inside of their pants to keep it at body temperature and using it to fill the urine drug test container. Petitioner contends he also raised safety concerns prior to his termination about co-workers fighting and using drugs on the job. Petitioner believes he was terminated in part due to these "whistle-blowing" activities. Advanced Roofing undertook an investigation into Petitioner's post-termination allegations, including drug testing at the worksite of 23 workers. Two workers refused to test and six others failed. However, the investigation did not confirm the widespread drug use or on-the-job intoxication alleged by Petitioner. Advanced Roofing denies that its supervisors instructed employees how to fool the test. Further, no significant incidents of fighting at the Lake Worth project were brought to the attention of management before or after Petitioner's termination. Aerotek's Employment of Other Older Workers Petitioner claims he was the oldest worker of the crew at Advanced Roofing. However, Petitioner admitted that Calvin Palmer, age 63, also worked as an electrical helper/laborer for Advanced Roofing at the Lake Worth site while Petitioner was employed. Mr. Palmer, who was hired as a laborer with electrical experience through another temporary service, has become a regular employee of Advanced Roofing and currently earns $23.00 per hour.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing FCHR Petition 201700134. DONE AND ENTERED this 5th day of October, 2017, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2017.
Findings Of Fact At all times material hereto, Respondent Robert F. Copenhaver was holder of a registered general contractor's license number RG 0013968 issued by the State of Florida. At all times material hereto, Respondent qualified Southwest Building and Development Corporation with the Construction Industry Licensing Board. See Petitioner's Exhibit #1. At all times material herein, neither Respondent nor Southwest Roofing and Waterproofing, Inc., were registered or certified as a roofing contractor with the Board. See Petitioner's Exhibit #1. At all times material herein, Respondent was the holder of a Class C building contractor's license and a specialty limited roof-coating and spraying license, both issued by Sarasota County. See Transcript of Proceedings, page Said license was limited to work done to cosmetically improve a roof. Any work done to repair leaks required a standard roofing license. Respondent and Don Cogswell incorporated Southwest Roofing and Waterproofing, Inc. (SRWI), under the laws of the State of Florida on January 10, 1980. See Petitioner's Exhibit #5. All work done by SRWI was done under the Sarasota special roofing contractor qualification. Respondent was president of the corporation until December 15, 1980, at which time he resigned and transferred all his stock to Cogswell. See Petitioner's Exhibit #6. On February 14, 1980, SRWI contracted with A. T. Esslinger to completely waterproof a roof at 816 Idlewild Way, Sarasota, Florida. See Petitioner's Exhibit #2. The only warranty referenced in the contract was a separate standard warranty to be delivered at the time of final payment. See Petitioner's Exhibit #3A. Respondent gave the Esslingers a letter (Petitioner's Exhibit #3B) in which SRWI guaranteed to stop the leaks in their roof. This letter referenced SRWI's standard warranty. To waterproof the roof, gravel was removed from the existing roof and a cement-like surface applied to the roof. On June 4, 1980, SRWI contracted with Earl Mowry to waterproof a roof at 5339 Gulf Drive, Holmes Beach, Bradenton, Florida, in accordance with specifications originally attached to the contract but not introduced at hearing. See Petitioner's Exhibit #4. To waterproof the roof, a concrete material was applied to the existing roof. On June 25, 1980, SRWI contracted with Maynard Howe to waterproof a roof over the family room in accordance with attached specifications at 2271 Mill Terrace, Sarasota, Florida. The only warranty given was the separate standard warranty to be delivered at the time of final payment. See Petitioner's Exhibits #7A and #7B. To waterproof the roof, a concrete material was applied to the existing roof. All of these contracts provided that SRWI would apply MARKEM Elastic Waterproofing material so that said roof areas were completely covered and free of all leaks. See Petitioner's Exhibits #9A, #9B and #9C for data concerning MARKEM. After the work was completed, each of the roofs in question leaked. When Respondent was contacted after he had left SRWI, he advised each of the persons that he had left the company and could not assist them. Respondent referred them back to SRWI, MARKEM or the company who became the MARKEM distributors in the area. None of the persons obtained relief from SRWI, the Respondent, MARKEM or MARKEM's new distributor. See Transcript of proceedings, pages 16, 25, 34. Howe sued SRWI and served Respondent with suit papers. In response, Respondent sent Howe a notarized document (Petitioner's Exhibit #6), which states that as of December 15, 1980, Respondent had resigned as president of SRWI and had transferred all of his stock to Don Cogswell. On October 14, 1980, SRWI contracted with Catherine Gilligan to waterproof her roof at 4819 Graywood Lane Meadows, Sarasota, Florida. See Petitioner's Exhibit #12. Gilligan paid SRWI $174 as partial payment on this contract. SRWI never did any work pursuant to the contract. Gilligan called SRWI, but to her knowledge never spoke to the Respondent concerning when SRWI was to start the job. Gilligan waited for one month, then called SRWI every day for three weeks. In the fourth week, SRWI's telephone was disconnected. This date reasonably coincides with the date Respondent resigned, December 15, 1980. No evidence was received of disciplinary action against SRWI or the Respondent by Sarasota County.
Recommendation Having found Respondent Robert W. Copenhaver guilty of violating Section 489.129(1)(j), Florida Statutes, it is recommended that the Construction Industry Licensing Board suspend the registration of Respondent as a general contractor for one year. DONE and RECOMMENDED this 21st day of December, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 21st day of December, 1982. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert W. Copenhaver 2409 34th Street, West Bradenton, Florida 33505 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 =================================================================
The Issue Whether Respondent, Department of Financial Services, Division of Workers' Compensation (Department or Respondent), should pay Petitioners’, Stephen Ogles, LLC, or RL Ogles Roofing, LLC (Petitioners), attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ for initiating Division of Administrative Hearings (DOAH) Case Nos. 13-2448 and 13-2517.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and officers, pursuant to section 440.107, Florida Statutes. Petitioners are in the business of roofing, within the construction industry, as defined by subsection 440.02(8), and are Florida employers over whom Respondent has jurisdiction to enforce the payment of workers' compensation premiums for the benefit of Petitioners' employees. Petitioners are the sole members of their respective limited liability companies, each with one employee. An officer of a corporation may elect to be exempt from chapter 440, Workers' Compensation, by filing a notice of election with the Respondent. § 440.02(15)(b)1., Fla. Stat. An officer of a corporation who elects to be exempt from Florida's Workers' Compensation Law is not an employee. § 440.02 (15)(b)3., Fla. Stat. Jonas Hall is employed as an investigator for the Division of Workers’ Compensation. He has been conducting workers’ compensation compliance investigations for approximately five years, and during that time has been involved in between 2,000 and 3,000 investigations. On June 12, 2013, Respondent issued a Stop-Work Order and Order of Penalty Assessment to Stephen Ogles, LLC, and RL Ogles Roofing, LLC, and a Stop Work Order For Specific Worksite Only to Ogles Construction and Roofing, LLC. Findings of Fact 8 through 18 below set forth the specific facts and circumstances known to Respondent at the time the SWO was issued. These facts are based upon the testimony at hearing of Jonas Hall, which is found credible, as well as documentary evidence offered by Respondent, which is corroborative of Mr. Hall’s testimony. Mr. Hall began a random site investigation on June 12, 2013, after he noticed construction work about to be performed at a single-family dwelling located in Live Oak, Florida. Upon investigation, four men were found to be installing roofing at a private residence. One of those workers, Robert Ogles, advised Respondent's investigator that he was working with his three sons, Stephen, Matt, and Robert, Jr. Investigator Hall first spoke to the elder Robert Ogles who advised Investigator Hall that he was the general contractor on the job and that his sons were working as subcontractors. At no time during the interview did Robert Ogles state that his sons were employees of his company, Ogles Construction and Roofing, LLC. Investigator Hall next spoke to Stephen Ogles who stated that he owned his own business and had a valid workers’ compensation exemption. Investigator Hall then spoke to the younger Robert Ogles who also advised him that he owned his own business and had a valid workers’ compensation exemption. Finally, Investigator Hall spoke to the third son, Matt Ogles, who also stated that he owned his own business and had a valid workers’ compensation exemption. At no time during the interview of June 12, 2013, did any of the three sons state that they were employees of their father’s business. After interviewing the four Ogles, Investigator Hall left the jobsite in order to gain access to a wireless internet connection for his computer. Once he obtained a connection, Investigator Hall accessed the Division of Corporations website to look up the correct names of the businesses owned by the four Ogles. With respect to the two Petitioners, the website revealed that Stephen Ogles was the sole member of Stephen Ogles, LLC, and that Robert Ogles, Jr., was the sole member of RL Ogles Roofing, LLC. Investigator Hall then accessed the Coverage and Compliance Automated System (CCAS) to ascertain the status of workers compensation coverage for the four individuals. CCAS revealed that while both Petitioners had at one time held exemptions, both exemptions had expired at the time of Investigator Hall’s site visit on June 12, 2013. Based upon this information, Investigator Hall reasonably concluded that both Petitioners were not in compliance with Florida workers’ compensation coverage requirements. With respect to the third son, Matt, Mr. Hall’s investigation revealed that his company, Matt Ogles, LLC, held a valid exemption, and was therefore compliant with the workers compensation coverage requirements. As such, Investigator Hall did not issue an SWO to Matt Ogles, LLC. After accessing information about Petitioners’ status on his computer, Investigator Hall returned to the jobsite. Upon his return, he observed all four of the Ogles working at the jobsite, with two actively working on the roof of the home. Investigator Hall then called those on the roof down, and served the SWOs on Petitioners. The facts uncovered in Investigator Hall's investigation on June 12, 2013, provided the Department with a reasonable basis to issue the SWOs to Petitioners. On June 17, 2013, Petitioners timely filed a Request for Hearing alleging the affirmative defense that Petitioners had valid workers' compensation exemptions. The Request for Hearing filed on behalf of Stephen Ogles, LLC, specifically stated: The Respondent disputes the SWO, to wit: The Owner’s exemption was not expired. And although worded somewhat differently, the Request for Hearing filed on behalf of RL Ogles Roofing, LLC, stated: The Respondent disputes the SWO, to wit: The WC Exemption was current. The Requests for Hearing filed by Petitioners on June 17, 2013, are consistent with the representations made to Investigator Hall on June 12, 2013, to wit, both Petitioners were subcontractors on the job, and held valid exemptions. On September 10, 2013, Petitioners filed an Amended Request for Hearing disputing the penalty assessment, and contending that Petitioners were employees of Ogles Construction and Roofing, LLC. The Amended Request for Hearing stated in pertinent part: The Respondents disputes the SWO, to wit: Ogles Construction and Roofing LLC disputes the penalty assessment. RL Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. Stephen Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. On October 8, 2013, Respondent issued an Order Releasing Stop-Work Order (Revocation) to Stephen Ogles, LLC, and RL Ogles Roofing, LLC. Two witnesses testified as to the reasonableness of the attorney’s fees being sought by Petitioners. Petitioners’ witness on the subject, John Middleton, is a Jacksonville attorney with eight years’ experience in handling workers’ compensation defense matters. Mr. Middleton opined that the $5,000 in fees being claimed by each Petitioner was not excessive, particularly in view of the successful outcomes for Petitioners in the underlying cases. Respondent’s witness, Ralph Paul Douglas, Jr., is a Tallahassee attorney who has concentrated his practice on workers’ compensation matters for twenty years. Mr. Douglas testified that Petitioners’ attorney in the underlying cases claimed 13.3 hours per case for legal services. However, according to Mr. Douglas, at least 1.3 hours of the total hours should be deducted as not awardable due to those hours relating to the preparation of a motion in response to an order to compel. Such fees “cannot be related to any delay, any confusion caused by that party claiming the fees, . . . obfuscation, . . . anything that does not move the case along in the docket.” It was Mr. Douglas’s opinion that 12 hours of legal services is a reasonable number for the underlying cases. However, since the same itemized list of services was submitted for both cases, Mr. Douglas concluded that the second itemized list was duplicative and mostly amounted to only ministerial work. The second itemized list should be, therefore, apportioned. Mr. Douglas testified that a $10,000 fee for the work done on the underlying cases would not be appropriate or reasonable based on the pleadings, the deposition testimony of the attorney performing the work, and the itemization of services. Rather, a reasonable fee would be 12 hours at $200 per hour for one case ($2,400) and $1,200 on the second case. Thus, the total fees that should be awardable for both cases would be $3,600. While the testimony of both Mr. Middleton and Mr. Douglas is credible, the undersigned gives greater weight to the testimony of Mr. Douglas due to his greater experience in the field of workers’ compensation law, and his more detailed analysis of the legal services performed in the underlying cases. The unrebutted testimony presented by Stephen Ogles and Robert Ogles, Jr., established that their respective LLC’s employ fewer than 25 full-time employees and have a net worth of less than $2 million each.
