The Issue Whether Petitioner's challenge to the failing grades he received on the Business and Financial Management and General Trade Knowledge portions of the April 1996 plumbing contractor certification examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: Petitioner sat for the certification examination for plumbing contractors administered in April of 1996 (Certification Examination). The Certification Examination consisted of two parts. One part contained questions relating to business and financial management. The other part contained questions testing the applicants' general knowledge of the plumbing trade. Prior to the Certification Examination, applicants were given a list of reference materials (Reference Materials) and advised that questions on the test would be taken from these sources, which included AIA Document A201, the Builder's Guide to Accounting, the Contractor's Manual, the National Standard Plumbing Code Illustrated, NFPA 99- Health Care Facilities, and NFPA 54- National Fuel Gas Code. The applicants were further advised that they would be permitted to bring these Reference Materials to the testing site and to use them in attempting to answer examination questions. Question 8--Business and Financial Management, Session One Question 8 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to determine which one of the choices given did not represent, according to AIA Document A201, a basis upon which an architect could withhold certification of payment. Section 9.5 of AIA Document A201 addresses the subject of "decisions to withhold certification" and provides as follows: DECISIONS TO WITHHOLD CERTIFICATION The Architect may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Architect's opinion the representations to the Owner required by Subparagraph 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Subparagraph 9.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Architect may also decide not to certify payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss because of: defective Work not remedied; third party claims filed or reasonable evidence indicating probable filing of such claims; failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; damage to the Owner or another contractor; reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or persistent failure to carry out the Work in accordance with the Contract Documents. It is clear from a reading of Section 9.5 of AIA Document A201 that the only correct answer to Question 8 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 11--Business and Financial Management, Session One Question 11 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to select the choice which represented the most likely explanation for a decrease in gross profits in relation to sales. Page 149 of the Builder's Guide to Accounting reads, in pertinent part, as follows: A second useful test shows your cash position over a period of time. Take your gross profits as a percentage of sales volume for a given period. Then compute this percentage for a number of periods to get a trend. This indicates the amount of real control you have over your costs. When gross profit decreases in relation to sales, either you are not controlling your costs or your prices do not allow enough markup over your costs. Other factors that affect the level of gross profit can be unexpected inventory losses, increases in idle time, and material theft. It is clear, particularly upon a reading of the foregoing excerpt from the Builder's Guide to Accounting, that the only correct answer to Question 11 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 33--Business and Financial Management, Session One Question 33 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to select the choice which accurately described the characteristics of a joint venture. Page 1-15 of the Contractor's Manual gives the following description of a "joint venture": A joint venture is a special combination of two or more persons jointly seeking a profit in some specific venture, without an actual partnership or corporate designation. The rights of persons who intend to do business as joint venture are governed substantially by the same rules that govern partnerships. An oral agreement between the parties may be sufficient to form a joint venture. However, to preclude misunderstandings it is strongly recommended that the agreement be in writing. The primary difference between a partnership and a joint venture is that a partnership is usually created for the transaction of business of a particular type, while the joint venture is usually limited to a single transaction. The advantages and disadvantages of a joint venture are substantially the same as those listed above for partnerships. It is clear, particularly upon a reading of the foregoing excerpt from the Contractor's Manual, that the only correct answer to Question 33 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 36--Business and Financial Management, Session Two Question 36 of Session Two of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required applicants to determine which of the choices given indicated the point in time when revenue, costs, and expenses are first recognized under the percentage of completion method of accounting. Page 19 of the Builder's Guide to Accounting contains the following statement regarding the percentage of completion method of accounting: The advantage of the percentage of completion method is that income and its related costs, expenses, and profits are recognized and reported as the job progresses. It is clear, particularly upon a reading of the foregoing excerpt from page 19 of the Builder's Guide to Accounting, that the only correct answer to Question 36 of Session Two of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(D)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 37--Business and Financial Management, Session Two Question 37 of Session Two of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It asked how a contractor can be sure that general ledger entries have been correctly made. Page 202 of the Builder's Guide to Accounting states the following regarding general ledger entries: After you post your ledger at the close of the period, the first step to take in drawing up financial statements is to put together a trial balance. See Figure 21-1. This worksheet proves that the ledger is in balance. In all cases, debits should equal credits. So the total of all debits on one side of the trial balance must equal the total of all credits on the other side. Otherwise, none of the financial statements will balance. . . . The general ledger is in balance when all entries into it have been made correctly. The way to prove this is to add up the totals of all accounts. Modern-day general ledgers are maintained by the double entry system. This means that every entry is made twice- one debit and one credit. Debits are positive numbers and credits are negative. Because every entry includes a positive (debit) and a negative (credit), a correctly posted general ledger will add up to a net of zero. It is clear, particularly upon a reading of that portion of page 202 of the Builder's Guide to Accounting set forth above, that the only correct answer to Question 37 of Session Two of the Business and Financial Management portion of the Certification Examination is choice "(B)." The response selected by Petitioner, choice "(D)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 40--General Trade Knowledge, Division II, Session Three Question 40 of Session Three of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to examine a drawing illustrating fixtures in a public lavatory and to compare the drawing to the requirements set forth in the National Standard Plumbing Code Illustrated, Section 7.16.2 of which addresses the "size of floor drains" and provides as follows: Floor drains shall be of a size to serve the intended purpose. Minimum size trap shall be 2 inches. The only correct answer to this question is choice "(A)." Inasmuch as Section 7.16.2 of the National Standard Plumbing Code Illustrated provides that the"[m]inimum size trap shall be 2 inches," the response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 3--General Trade Knowledge, Division II, Session Four Question 3 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to determine which of the devices listed, according to NFPA 99- Health Care Facilities, was required to be located on a medical gas line immediately outside of each vital life-support or critical care area. Section 4-4.1.3.2 of NFPA 99- Health Care Facilities provides as follows: A shutoff valve shall be located immediately outside each vital life-support or critical care area in each medical gas line, and located so as to be readily accessible in an emergency. Valves shall be protected and marked in accordance with 4-6.4.1.2. All gas-delivery columns, hose reels, ceiling tracks, control panels, or other special installations shall be located downstream of this valve. It is clear from a reading of the pertinent portions of NFPA 99- Health Care Facilities that the only correct answer to Question 3 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is incorrect. Petitioner therefore appropriately received no credit for this question. Question 25--General Trade Knowledge, Division II, Session Four Question 25 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to identify which of the piping materials listed would be suitable for use in a fuel gas system according to NFPA- 54 National Fuel Gas Code. Section 2.6 of NFPA 54- National Fuel Gas Code describes the "acceptable piping materials and joining methods" for a fuel gas system. It provides, in pertinent part, as follows: 2.6.2 Metallic Pipe. Cast-iron pipe shall not be used. Steel and wrought-iron pipe shall be at least of standard weight (Schedule 40) and shall comply with one of the following standards: Standard for Welded and Seamless Wrought- Steel Pipe, ANSI/ASME B36.10. Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated Welded and Seamless, ASTM A53; or Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service, ASTM A106. Nodular (ductile) iron pipe shall comply with one of the following standards: Standard for Ductile-Iron Pipe, Centrifugally Cast, in Metal Molds or Sand- Lined Molds, for Gas, ANSI A21.52; or Specification for Ductile Iron Pressure Pipe, ASTM A377. Such pipe shall be not less than 3-inch size, shall not be welded, and shall be used only underground outside building foundation boundaries, or above ground, provided that joints are properly restrained against movement and separation. It is clear from a reading of the pertinent portions of NFPA 54- National Fuel Gas Code that the only correct answer to Question 25 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination is choice "(A)." The response selected by Petitioner, choice "(D)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Isometric Drawings In Session Three of the General Trade Knowledge (Division II) portion of the Certification Examination the applicants were given "five (5) problems relating to the interpretation of various plumbing codes as they pertain to piping and equipment systems illustrations as are commonly used on construction drawings and in the plumbing industry." For each problem the applicants were given a floor plan or "plan view," as well as a "blank isometric sheet" on which they were required to "develop an isometric drawing from each of the floor plans in the space provided . . . compl[ying] with applicable codes and the directions given in the problem." The following "plumbing isometric drawing criteria" were listed in the examination booklet: Listed below are the criteria used to evaluate all isometric drawings. Remember to display all symbols and the directions of flow. You must meet all the criteria specified, for each drawing to obtain credit. 1.0 Proper Orientation of Fixtures and Piping in Reference to the Floor Plan All fixtures and piping must be properly oriented as outlined by the floor plan. 2.0 Display of Symbols on Isometric Drawings All symbols must be displayed in the correct manner. 3.0 Indication of Direction of Flow as per the National Standard Plumbing Code Illustrated 1993 and the 1995 supplement The direction of flow must be indicated even if the direction is implied. . . 4.0 Elevations of Connections All connections must be displayed at the proper elevations. 5.0 Use of 30-60-90 Degree Angles All angles must be displayed at the proper orientation. 6.0 Code Compliance as per Standard Plumbing Code, 1994 with 1995 revisions, (SBCCI) The drawing must be in compliance with this code and pass inspection. 7.0 Representation of Floor Plan Elevations in Piping The piping must display the correct elevation in reference to the floor plan. The examination booklet also contained the following instruction: "Use only those symbols, abbreviations and drawing conventions as are contained in the approved references and this booklet." Petitioner's drawings in response to Problems 1, 3, 4, and 5 (Petitioner's Drawings 1, 3, 4, and 5) did not "meet all the criteria specified." Therefore, in accordance with the grading policy set forth in the examination booklet,2 Petitioner did not obtain any credit for these drawings. In Petitioner's Drawing 1, vents and fittings were not properly displayed, and the water closet line was not displayed at the correct elevation. Petitioner's Drawing 3 was not in compliance with applicable code requirements governing elevation. In addition, vents and direction of flow were not properly indicated in the drawing. Petitioner's Drawing 4 failed to display a vent stack going through the roof that was shown on the "plan view." In addition, the wash fountains were mislabeled and an inappropriate fitting was indicated on the drawing. In Petitioner's Drawing 5, vents, fittings, and direction of flow were not properly displayed.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing grades he received on the Business and Financial Management and General Trade Knowledge portions of the April 1996 plumbing contractor certification examination. DONE AND ENTERED this 21st day of July, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1997.
The Issue The issue is whether the Petitioner, Nelson Castillo, is entitled to be certified for a commercial pool/spa contractor’s license.
Findings Of Fact The Petitioner is an applicant for certification as a commercial pool/spa contractor. The Petitioner currently holds certification as a pool/spa servicing contractor. The Petitioner has held this certification for approximately eight years. The Petitioner, in his capacity as a certified pool/spa servicing contractor, was the subject of three administrative cases referred to the Division of Administrative Hearings. The cases were designated DOAH Case Nos. 04-2380PL, 04-2381PL, and 04-2382PL. As to all three cases, on September 20, 2004, the Petitioner executed a Stipulation (the Stipulation) that provided, in pertinent part: 3. Respondent [this Petitioner] neither admits nor denies the allegations of fact contained in the Administrative Complaints attached hereto as Exhibit “A.” * * * FINE AND COSTS: Respondent shall pay a fine in the amount of Ten Thousand and 00/100 dollars ($10,000.00) and costs in the amount of One Thousand Three Hundred Ten and 51/100 dollars ($1,310.51), for a total of Eleven Thousand Three Hundred Ten and 51/100 dollars ($11,310.51), to the Board. RESTITUTION: The Respondent shall pay restitution to Jose and Bernardina Rodriguez in the amount of Five Thousand One Hundred Seventy Five dollars ($5,175.00) and to Orestes and Lourdes Martinez in the amount of Six Thousand Five Hundred dollars ($6,500.00), in installments, as set forth below. * * * 6. EARLY TERMINATION OF PROBATION AFTER TWO (2) YEARS: After two (2) years of satisfactory probation appearances, if the Respondent pays in full all of the fine and costs described in paragraph 2 above and pays in full all of the restitution described in paragraph 3 above and furnishes satisfactory written evidence thereof to the Executive Director of the Board, then the Respondent’s probation shall terminate. * * * 12. Upon the Board’s adoption of this Stipulation, Respondent understands and agrees that this Stipulation constitutes disciplinary action within the meaning of Section 455.227(1)(f), and 489.129, Florida Statutes. [Emphasis and Italic in original.] The Stipulation was approved by the Respondent at its public meeting on November 11, 2004. Since that time, the Respondent has not taken any other administrative action against the Petitioner. Also considered at the November 2004 meeting, however, was the Petitioner’s application to become a certified commercial pool/spa contractor. The denial of the Petitioner’s application for that certification was the genesis of the instant case. The Petitioner freely, and with advice of counsel, executed and accepted the terms of the Stipulation. At the time the Stipulation was executed, the Petitioner understood the terms of the agreement. The Petitioner’s certification as a pool/spa servicing contractor is valid. The Respondent has taken no additional adverse action against the servicing certification. The Petitioner has not paid all the sums required by the stipulation. It is barely two years since the Final Order Approving Settlement Stipulation was entered. The Petitioner’s certification as a pool/spa servicing contractor was disciplined as a result of the entry of the Final Order Approving the Settlement Stipulation. The scope of work that the Petitioner may perform pursuant to his certification as a pool/spa servicing contractor differs from the scope of work authorized by the certification sought in the instant matter.
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 that denies the Petitioner’s application for certification as a commercial pool/spa contractor. DONE AND ENTERED this 20th day of February, 2007, in Tallahassee, Leon County, Florida. S 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 20th day of February, 2007. COPIES FURNISHED: Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Warren Diener, Esquire Bared & Associates, P.A. The Atrium 1500 San Remo Avenue, Suite 248 Coral Gables, Florida 33146 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented is whether the Respondent is guilty of the allegations contained in the Administrative Complaint and therefore, in violation of Sections 489.127(1)(d) and 489.129(1)(j), Florida Statutes. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact The Respondent, Byron K. Godwin, Jr., is a certified plumbing contractor and a certified air conditioning contractor, having been issued license numbers CF C019153 and CA C020205. On July 6, 1978, the County Court Civil Division of Hillsborough County, Florida, entered a final judgment for Gorman Company of Tampa Inc., against the Respondent and Robert ,L. Hatfield in the amount of $2,252.36, including costs. On September 25, 1978, the Circuit Court, of the Tenth Judicial Circuit of Polk County, Florida, entered a final judgment for Peninsular Supply Company, Inc., against the Respondent, and Hatfield in the amount of $12,164.60, including costs. These judgments were based upon unpaid past-due bills resulting from the operation of Godwin and Hatfield, a construction company jointly owned by the Respondent and Hatfield. As of December 30, 1980, these judgments had not been satisfied by the Respondent, by Hatfield, or by anyone else. On March 11, 1980, a federal tax lien was filed with the Clerk of the Circuit Court of Hillsborough County, Florida, against the Respondent and Hatfield in the amount of 73,712.19. On May 8, 1980, the Respondent and Hatfield entered into an installment agreement with the Internal Revenue Service for the purpose of repaying the tax lien. Although both the Respondent and Hatfield knew about their tax deficiency, neither the Respondent nor Hatfield knew that the tax lien had been filed. Both men were advised by a representative of the IRS that a tax lien would not be filed if they agreed to pay the taxes due in installments. The Respondent attached a letter of explanation regarding the tax deficiency to his application. As of December 30, 1980, the tax lien had not been satisfied by the Respondent or Hatfield. On December 26, 1980, the Respondent made application to the Construction Industry Licensing Board to become a certified plumbing contractor. On his application, the Respondent answered in the negative the following question, 7(c): Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which -- such person was a member of the personnel? On his application, the Respondent also answered in the negative the following question, 7(d): Are there now any unpaid past-due bills or claims for labor, materials or services as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? The Respondent admitted that he was aware of the outstanding judgments, and, from the, application, it, is clear the outstanding judgments related to him as the applicant. In the space following question 7(i), the Respondent signed as applicant and then as corporate president and noted there was no vice president.
Recommendation Having found the Respondent guilty of violating Section 489.127(1)(d), Florida Statutes, by knowingly filing an application Containing false information, and thereby being guilty of violating Section 489.129(1)(j) , Florida Statutes, and in consideration of the facts in mitigation, it is recommended that the Board take no action against the Respondent's air conditioning contractor's license, which was not related to the application in question in this case. It is further recommended that the Board administratively revoke the Respondent's plumbing contractor's license with leave to file a complete and correct application for the Board's consideration. DONE and RECOMMENDED this 22nd day of December, 1983, 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 22nd day of December, 1983. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32301 Mary Ann Stiles, Esquire One Mack Center, Suite 1604 501 East Kennedy Boulevard Tampa, Florida 33602 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent's registered plumbing contractor's license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Stanley Monds, held a registered plumbing contractor's license number RF 0037461 which had been placed on a delinquent status for non-renewal effective July 1, 1985 and was invalid during the 1987-89 licensing period. On June 19, 1987, Monds, doing business as Clay Well and Pump Service, contracted with Charles W. Plath to install a culvert for the sum of $341.25. The culvert was installed by Monds and Plath paid Monds in accordance with the contract. On July 10, 1987, Monds, doing business as Clay Well and Pump Service, contracted with Plath to: (a) install a 2- inch well and a 1-Horsepower Meyers pump; (b) supply fill for septic tank pad and a culvert; (c) install septic tank and culvert; (d) install a 200 amp electrical service for mobile home and pump and; (e) tie-in the water line and electricity to the mobile home and pump. The net contract price was $6,574.00 of which Plath paid $4,295.00 in advance, leaving a balance of $2,279.00. Plath's mobile home site is located in Whitehouse, Duval County, Florida. There was no written or verbal agreement between Plath and Monds concerning a completion date. However, Plath had told Monds that he needed to be in the mobile home by August, 1987. Plath understood that Monds had other jobs that he was currently working on but would get to Plath as soon as possible. Monds advised Plath that the necessary permits for the job would have to be applied for (pulled) by Plath. Plath did not object to this, and on June 19, 1987 applied for a mobile home move-on permit with the Duval County Building Department. The mobile home move-on permit was issued to Plath on July 6, 1987. An applicant for a mobile home move-on permit must show that a septic tank permit has been issued before a mobile home move-on permit will be issued. The septic tank permit is issued through the local health department. The Duval County Building Department requires the person who is issued the mobile home move-on permit to assume the responsibility for acquiring the necessary inspections, even though the work is being performed by someone other than the person to whom the permit was issued. It was Plath's responsibility to see that the necessary inspections were made, including the septic tank inspection. The well and pump were installed sometime around the last of July or the first of August, 1987. Monds subcontracted the drilling of the well. Although part of the work under the contract had been completed, such as the well and pump installation and part of the septic tank, Plath encountered difficulty in making contact with, and getting a response from, Monds concerning the progress of the job and a completion date. Therefore, in October, 1987 Plath decided to contract the work to someone else. On October 8, 1987, Plath contracted with Wilkins & Sons Electric (Wilkins) to install: (a) the 200 Amp mobile home service pole and connect to mobile home; (b) the 220 Volt, 20 Amp circuit and connect to pump and; (c) the 175 Watt mercury vapor light fixture. The total price of the contract was $850.00. However, $85.00 for a mercury vapor light fixture was not part of the original contract with Monds. Wilkins applied for and was issued the required electrical permit for the Plath job on October 6, 1987. The final electrical inspection was made on October 9, 1987. 13 On October 13, 1987, Plath contracted with AA Septic Tank Service, Inc. to finish the partially completed septic tank which Monds had failed to complete for $300.00. Although the septic tank permit was issued before the mobile home move-on permit was issued, there is no evidence that anyone made a septic tank inspection. Although Monds was hampered by the rain during the period of time Monds worked on the Plath site, there was insufficient evidence to show that Monds was prevented by the rain from completing the work under the contract before Plath decided to contract with someone else because of the delay or that Monds advised Plath of the reason for the delay. Plath did not prevent, or prohibit, Monds for completing the work under the contract. Monds failed to pay Tim Prep, Inc. for 15 loads of fill ordered and used by Monds on the Plath job. As a result of Monds failure to pay for the fill, Tim Prep, Inc. filed a Notice Of Intention To Claim A Lien in the amount $1,181.25 against Plath's property. Monds had not paid Tim Prep, Inc. for the fill at the time of the hearing. The work on the on the Plath job was completed in late October or early November, 1987. Monds was still working on the Plath job as late as September 1, 1987 when Tim Prep, Inc. delivered fill to the Plath site for Monds. Although Plath never paid Monds the $2,279.00 balance, Plath was required to pay other contractors $1,075.00 ($850.00 minus $85.00 plus $310.00) and will be required to pay $1,181.25 to Tim Prep, Inc. to remove the lien from his property which comes to a total of $2,256.25, leaving a balance of $22.75. This does not take into consideration any compensation for the delay suffered by Plath. Although probable cause was found against Monds by the Florida Construction Industry Licensing Board (Board) on January 7, 1988 and a letter of guidance issued in apparently another matter, there was no evidence concerning the violations or the charges involved.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and Rule 21E- 17, Florida Administrative Code, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, Stanley Monds guilty of violating Section 489.115(3)(a), Section 489.119(3), and Section 489.129(1)(j) and (m), Florida Statutes, and for such violation impose an administrative fine of $750.00. It is further RECOMMENDED that the charges alleged in the Administrative Complaint of violating Section 489.129(1)(d) and (k), Florida Statutes be DISMISSED. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 18th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0464 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner: Each of the following Proposed Findings of Fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the Proposed Finding of Fact: 1 & 2(1); 3(2- 5); 4 & 5(3); 6(6); 7(9); 8(10); 9(9); 10(11); 11(13); 12(18); 13(17); 14(6 & 12); 15(6 & 8); 16(12); 17(16); 18(2 & 3); 19(1). Specific Rulings on Proposed Findings of Fact Submitted by the Respondent: 1. Respondent did not submit and posthearing proposed findings of fact. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation Northwood Centre 1940 N. Monroe St. Tallahassee, Florida 32399-0750 Stanley Monds 326 West Macclenny Avenue Macclenny, Florida 32063 =================================================================
Findings Of Fact At all times material hereto, Daniel Frank Molinari (Respondent) was a certified plumbing contractor, being licensed by the Florida Construction Industry Licensing Board (CILB) and having been issued license numbers CF C021437 and CF C041671. On or about March 20, 1990, the State Attorney of Dade County, Florida charged Respondent by Information with an attempted offense against intellectual property in violation of Sections 815.04(3) and 777.04, Florida Statutes, a misdemeanor: "[Respondent] on the 19th day of February 1990 . . . willfully, knowingly, without authorization, attempt to disclose or take data, programs, or supporting documentation, to wit: The CONTENTS of a CONTRACTOR'S LICENSING EXAMINATION, which is confidential as provided by law, residing or existing internal or external to a computer, computer system, or computer network. . ." On or about July 30, 1990, Respondent pled nolo contendere to the misdemeanor charge. Based upon Respondent's plea of nolo contendere, the Dade County Judge entered a judgement finding Respondent guilty as charged, withholding adjudication and imposing costs in the amount of $300.00. In the Dade County judicial circuit, a judge usually makes a finding of guilt when a defendant pleads nolo contendere even if adjudication is withheld. Typically, items in a CILB examination are reused on subsequent exams. However, each examination must contain a certain percentage of new items. Because of Respondent's attempted act, the CILB considered the items on the contractors examination in 1990 to be compromised and, therefore, unusable for subsequent examinations. The 1990 CILB examination consisted of two hundred and twenty-one (221) items. Consequently, 221 new items had to be developed at a cost of approximately $100.00 per item. On or about June 10, 1993, Respondent submitted to the CILB a Certification Change of Status Application (Application) to activate his inactive certified plumbing contractor license (license number CF C041671). Question 7(H) of the Application inquired whether Respondent had ever "Been found guilty of any crime other than a traffic violation". He responded "no" to the question. The Application required an affirmation, and Respondent so affirmed, that "these statements are true and correct and I recognize that providing false information may result in a fine, suspension, or revocation of my contractor's license." Respondent's request for activation could have been denied if he had responded "yes" to question 7(H) of the Application.
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: Dismissing Count II of the administrative complaint in DOAH Case No. 94-5259; Dismissing all counts of the administrative complaint in DOAH Case No. 95-0199; Revoking Respondent's licenses; Imposing costs for the investigation and prosecution to be determined by the construction Industry Licensing Board. DONE AND ENTERED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 29th day of August, 1995.
Findings Of Fact James Paleveda, one of the Petitioners, took the examination for a plumbing contractor's license on February 10 and 11, 1983, and failed the examination. He was the only witness to testify on behalf of the Petitioners. Some of the other Petitioners took a different examination on different dates than the examination complained of in these proceedings, but no evidence was presented identifying those Petitioners and no evidence was presented relative to those exams. Petitioners presented no evidence that any or all of them gave incorrect answers to the questions complained of, and, but for those incorrect answers, they would have passed the examination. The sum and substance of the testimony presented by the Petitioner Paleveda was that, in his opinion, most of the questions in Exhibit 1, the examination Paleveda took, were not appropriate to determine if the applicant is qualified to be a plumbing contractor. Paleveda has never been a plumbing contractor and has little experience in the contracting field. He is also nearly 57 years old and, although fit, conceded the long examination for a man his age and background was much more tiring than it would be for a younger man fresh out of school. Questions 1 through 27 of Exhibit 1 deal with social security taxes withheld and paid by employers for their employees; federal income taxes withheld; Florida mechanics lien law; workers' compensation law; unemployment compensation law; Florida Construction Industry Licensing law; accounting and cost-keeping procedures; and general contract provisions. Petitioners contend that although some knowledge of these subjects is desirable, a contractor can always hire accountants and lawyers to handle these problems. Respondent, on the other hand, presented the testimony of plumbing contractors who have been in the business for many years who testified that knowledge of the cost of social security, workers' compensation and unemployment insurance, contract provisions, and all costs associated with the performance of plumbing contracts are essential if a plumbing contractor is to remain solvent. This latter testimony is deemed more credible and is factually accepted. Questions 28 through 93 generally involve questions form the Plumbers Handbook and Mathematics for Plumbers and Pipe Fitters. Petitioner's primary objections to these questions are that in some cases the answers from the Plumbers Handbook is different from the local codes. Respondent presented evidence that there are some differences throughout the state in the plumbing codes and this is the principal reason for utilizing a standard that can be applicable to all candidates. The candidates are told that the correct answers to those questions are those given in the Plumbers Handbook and the examinees are allowed to have this book in the examination room. Questions 94 through 100 are taken from the Solar Water and Pool Heating Manual and Petitioners contend these questions are too hard. Petitioners further contend that any plumber should check with the manufacturer for specific instructions before installing a solar water heating system. All plumbing contractors are authorized to install a solar water hearing system and each should be required to demonstrate a rudimentary knowledge of such a system before being so licensed. Accordingly, Petitioner's objections to these questions are without merit. The first 27 questions to which the Petitioners object are very similar to the questions given to all building contractors for a statewide license. Those questions cover areas that a contractor must know to remain financially solvent. Most contractors initially starting a business do not have sufficient capital to hire attorneys and accountants to advise each time a question arises regarding these fields. A contractor can hardly afford to hire an attorney to file a $200 mechanics lien.
Recommendation It is RECOMMENDED that the COMPLAINT and other contentions of Petitioners regarding the unfairness of the February 11 and 12, 1983 examination for plumbing contractors be dismissed. DONE AND ENTERED this 20th day of July 1984 at Tallahassee, Florida. K. N. AYERS 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 20th day of July 1984. COPIES FURNISHED: Michael Steinberg, Esquire 2055 Dale Mabry Tampa, Florida 33609 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. Douglas Moody, Esquire 199 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner as a shift supervisor at the Conserv I wastewater treatment facility.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a white male. At the time of the events giving rise to this proceeding, Petitioner was 52 years old. Petitioner holds a Class “A” wastewater treatment plant operator license from the State of Florida. Petitioner has worked for the City as a wastewater treatment plant operator since 1991. All of Petitioner’s experience with the City has been at the City's Iron Bridge facility. Respondent is a municipality of the State of Florida. Respondent operates at least three wastewater treatment facilities -– known as Conserv I, Conserv II (not directly implicated in this case), and Iron Bridge -– through its Wastewater Process and Operations Bureau (Wastewater Bureau). Each facility is slightly different. The Conserv I facility has a capacity of 7.5 million gallons per day (mgd) and is designed to service approximately 75,000 people. The facility uses a unique, technologically complex process to treat wastewater. The treated wastewater from the Conserv I facility is used for irrigation, and is referred to as “reuse” or reclaimed water. The Iron Bridge Facility is larger than the Conserv I facility. It has a capacity of 40 mgd and is designed to service approximately 400,000 people. The facility uses a more traditional process to treat the wastewater. The treated wastewater from the Iron Bridge Facility is discharged into wetlands and rivers; it is not used as reclaimed water. Hiring Process for the Conserv I Shift Supervisor In early 2001, a shift supervisor position came open at the Iron Bridge facility. Petitioner applied for that position, but he was not interviewed. The Iron Bridge shift supervisor position was filled by Don Proscia, a 64 year old white male. Mr. Proscia was a shift supervisor at the Conserv I facility, and his hiring at the Iron Bridge facility was considered to be a “lateral transfer” by the City. Apparently, the City does not interview other candidates where an existing employee requests a lateral transfer, which explains why Petitioner was not interviewed for the Iron Bridge shift supervisor position. As a result of Mr. Proscia’s lateral transfer, a shift supervisor position came open at the Conserv I facility. The minimum qualifications for the Conserv I shift supervisor position, as reflected on the job posting (Joint Exhibit 12), were graduation from high school, two years of experience in the operation of a wastewater treatment facility, and a valid Florida driver's license. The position also required a current Class "B" wastewater treatment operator license, and required a Class "A" license to be obtained within two years of employment. Experience in advance wastewater treatment and prior supervisory experience were preferred. Petitioner applied for the Conserv I shift supervisor position. Terry White and Klaus Blixer also applied for that position. Mr. White is an African-American male, and he was 29 years old at the time. He has worked for the City as a wastewater treatment plant operator since 1994. All of Mr. White’s experience with the City has been at the Conserv I facility. At the time of his application, Mr. White held a Class “B” wastewater treatment plant operator license. Subsequently, he obtained a Class "A" license. Mr. Blixer is a white male. The record does not reflect his age. Mr. Blixer has worked for the City as a wastewater treatment plant operator since approximately 1995. All of his experience with the City has been at the Iron Bridge facility. At the time of his application, Mr. Blixer held a Class “A” wastewater treatment plant operator license. The three applicants for the Conserv I shift supervisor position were interviewed by a committee composed of Ernie Cox, Charlie McComas, and Paul Deuel, all of whom are members of management with the Wastewater Bureau. Mr. Cox is an African-American male; Mr. McComas and Mr. Deuel are both white males. All of the committee members are 40 years of age or older. The committee interviewed each applicant and asked them the same set of interview questions. The interviews were all conducted on the same day. After all of the interviews were complete, the committee discussed their general impressions of each applicant. The committee did not make the hiring decision on that day. However, each of the committee members testified at the hearing that they ranked Mr. White the top candidate at that point, and two of the three committee members testified that they considered Mr. Blixer (not Petitioner) to be the second-best candidate. In an effort to obtain additional input on the applicants, Mr. Cox contacted Charles Thompson, the plant manager at the Iron Bridge facility where Petitioner and Mr. Blixer worked. Mr. Cox is the plant manager at the Conserv I facility where Mr. White worked, so he was generally familiar with him and his qualifications; however, he also obtained feedback on Mr. White from Mr. McComas, who was a chief operator at Conserv I and was more familiar with Mr. White's attendance and on-the-job performance. Mr. Thompson did not strongly recommend either Petitioner or Mr. Blixer. He characterized Petitioner as an "average" employee who did what was asked of him but nothing more. Mr. Cox relayed this information to the other members of the committee. Based upon the interviews and the additional information acquired by Mr. Cox, the committee unanimously agreed to recommend that Mr. White be hired for the Conserv I shift supervisor position. Mr. Cox forwarded the committee’s recommendation to David Sloan, the chief of the Wastewater Bureau. Mr. Sloan accepted the committee’s recommendation and forwarded it to Tom Lothrop, the director of the Environmental Services Department, for final approval. Mr. Lothrop gave final approval to the recommendation, and Mr. White formally assumed the shift supervisor position in June 2001. There is no credible evidence that either race or age were considered at any point during the interview process or that the committee was given a mandate by anyone in the City's management to hire a particular person or a person of a particular race or age for the Conserv I shift supervisor position. Indeed, at the hearing, each member of the interview committee adamantly (and credibly) denied consideration of race or age in connection with their recommendation to hire Mr. White. The committee members based their recommendation to hire Mr. White on his qualifications, work ethic, and experience at the Conserv I facility. As discussed below, Mr. White was more qualified for the Conserv I shift supervisor position than was Petitioner. The only direct evidence of discrimination cited by Petitioner in support of his claim allegedly occurred during the course of the internal grievance process initiated by Petitioner after he was not hired for the shift supervisor position. That process and the alleged evidence of discrimination are discussed below. City’s Internal Grievance Process After Petitioner learned that he had not been hired for the shift supervisor position, he filed a grievance with the City. The grievance was denied at each step in the process as described below. The City’s grievance process includes four steps. Step One is a hearing before Petitioner's plant manager, i.e., Charles Thompson. Step Two is a hearing before the chief of the Wastewater Bureau, i.e., David Sloan. Step Three is a hearing before the director of the Environmental Services Department, i.e., Tom Lothrop. Step Four is a hearing before a three-member grievance committee composed of two persons selected by the City and one person selected by Petitioner. The first three steps are relatively informal and are not recorded. They are meetings and/or discussions to address the concerns of the person who filed the grievance. Step Four is a more formal hearing, and it is tape recorded. Petitioner waived his Step One hearing, and the record does not include any credible evidence regarding Petitioner's Step Three hearing. Indeed, the focus of Petitioner's discrimination claim is on events which allegedly occurred at the Step Two and Step Four hearings. Petitioner's Step Two hearing was conducted on September 14, 2001. There is no credible evidence that Mr. Sloan (or anyone else) made a statement at that hearing regarding a need or requirement to hire a minority for the Conserv I shift supervisor position. Petitioner's Step Four hearing was conducted on November 10, 2001. That portion of the tape recording of the Step Four hearing introduced by the parties in this proceeding does not include any direct evidence of discrimination. Mr. Sloan did state that given two equal candidates, he would favor the minority in an effort to increase the diversity in the Wastewater Bureau. However, he further stated (consistent with his testimony at the hearing) that race did not factor into the decision to select Mr. White for the Conserv I shift supervisor position because Mr. White and Petitioner were not equal candidates. One of the exhibits discussed by Mr. Sloan at the Step Four hearing compared the percentage of black and white managerial employees in the Wastewater Bureau as a result of Mr. White's promotion with the percentage which would have existed if Petitioner had received the shift supervisor position. That exhibit, which was received in this proceeding as Joint Exhibit 7, was prepared by Mr. Sloan solely for use at the Step Four hearing to rebut Petitioner's discrimination claim and to show that the City does not discriminate based upon race or age. The exhibit was not used in connection with the decision to select Mr. White for the Conserv I shift supervisor position. Indeed, there is no credible evidence that the document existed prior to the Step Four hearing. In any event, Joint Exhibit 7 shows that there is not a pattern of discrimination in the Wastewater Bureau against persons in Petitioner's class (i.e., white males over age 45). The exhibit shows that more than 67 percent of the managers and supervisors in the Wastewater Bureau are white, and 35 percent of the managers and supervisors were promoted to those positions after the age of 46. The other exhibit discussed by Mr. Sloan at the Step Four hearing compared the qualifications of Mr. White and Petitioner. That exhibit, which was received in this proceeding as Joint Exhibit 6, presents an incomplete view of Petitioner's education and training because Mr. Sloan obtained the information on Petitioner (and Mr. White) from the personnel files maintained at the Wastewater Bureau, not the files maintained in the City's Personnel Office. The omissions in Joint Exhibit 6 are immaterial in this proceeding, however, because the record includes the Personnel Office files for Petitioner (Joint Exhibit 1) and Mr. White (Joint Exhibit 2), and those exhibits rather than Joint Exhibit 6 were relied upon in evaluating the relative qualifications of Petitioner and Mr. White. Relative Qualifications of Petitioner and Mr. White Both Petitioner and Mr. White met the minimum qualifications for the Conserv I shift supervisor position as reflected on the job posting. Neither Petitioner nor Mr. White has a college degree, but both have taken college courses. Mr. White has taken courses towards a business administration degree at Valencia Community College. Petitioner completed a correspondence course from Michigan State University on supervisory management in the water and wastewater field.2 Both Petitioner and Mr. White have attended numerous seminars and continuing education courses on wastewater. Petitioner has held a Class "A" wastewater treatment plant operator license since at least 1995. Mr. White held only a Class "B" license at the time of his application; however, he obtained his Class "A" license in April 2002, which is well within the time specified in the job posting for the shift supervisor position. Mr. White has a reclaimed water field inspector certification, which is important for Conserv I because the facility produces reclaimed water. Petitioner does not have this certification. Both Petitioner and Mr. White had worked "out of class" as shift supervisors at their respective plants. Both performed well in those positions. Petitioner had slightly more experience than Mr. White as a wastewater treatment plant operator with the City, i.e., 10 years compared to seven years. However, all of Mr. White's experience was at the Conserv I facility, whereas all of Petitioner's experience was at the Iron Bridge facility. The location of the experience was one of the most significant factors in the hiring decision. Mr. White's experience at the Conserv I facility meant that he would not have a significant learning curve in the shift supervisor position. By contrast, it would take Petitioner at least three to six months to adapt to the operational differences at the Conserv I facility. The other significant factors in the hiring decision were Mr. White's work ethic, his demonstrated communication and leadership skills, and his familiarity with the City's policies and procedures. Mr. White demonstrated his communication and leadership skills as a union representative and as a member of the City's pension advisory board. Mr. White's familiarity with the City's policies and procedures was important because he would be responsible for interpreting and applying those policies and procedures to the employees that he supervised. Mr. White was characterized by his supervisors as an exemplary employee who was highly motivated and takes pride in performing his job well. He willingly took on additional tasks, and he worked well without direction. By contrast, Petitioner was characterized by his supervisors as an "average" employee who did what was asked of him but nothing more.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2002.
Findings Of Fact At all material times, Respondent has been a registered plumbing contractor, holding license number RF 0049725. He was first licensed in October, 1985, and has practiced plumbing contracting continuously since that time. Respondent has not previously been disciplined. In early 1989, Respondent entered into a subcontract with A-1 Properties to provide various plumbing labor and materials in connection with a residential construction job on which A-1 Properties served as general contractor. The total price of the subcontract was $5100. In general, Respondent performed his work in a timely and competent manner. A minor problem arose involving gas lines that Respondent installed in the kitchen. When a representative of the gas company inspected them during construction, he objected to certain fittings. After giving Respondent a few days to change the fittings, the owner authorized the gas company to make the changes when Respondent failed to do so. The record does not disclose what, if anything, the gas company charged the owner for the work. However, the work was not extensive, and the owner withheld from Respondent only $165 to cover the anticipated invoice from the gas company. In the course of performing the plumbing work, Respondent purchased, at a cost of $2117.77, materials from Shamrock Plumbing. The dates of the invoices reflecting these purchases and the amounts of the invoices are: August 2, 1989- - $1066.57; August 12, 1989--$37.77; August 25, 1989--$814.86; and August 25, 1989--$198.57. Respondent never paid Shamrock Plumbing for these materials. The owner and A-1 Properties timely paid Respondent for all of his work. As a result of change orders, the price for the job increased by $1355.45 to a total of $6455.45. In August, as Respondent's work drew to a close, the owner and A-1 Properties paid Respondent $2337 as follows: August 25, 1989-- $700; August 29, 1989--$500; and August 30, 1989--$1137. These payments total $2337. In making the final payment to Respondent, the representative of A-1 Properties was aware that Shamrock Plumbing had sent to a Notice to Owner for the plumbing materials that Respondent had purchased. Except possibly for the $165, item, Respondent and the general contractor were in agreement, when the final payments were made in August, that Respondent had been paid substantially in full and that he would pay Shamrock Plumbing. When Respondent failed to pay Shamrock Plumbing, it recorded a Claim of Lien on September 28, 1989, against the real property and initiated an action to foreclose the lien. The owner was required to retain the services of an attorney to defend the foreclosure action, pay Shamrock: Plumbing's legal costs, and obtain a release of lien. In so doing, the owner expended a total of $3984.19, as follows: his attorney--$456; Shamrock Plumbing's attorney--$1410.42; Shamrock Plumbing's invoice--$2117.77. The owner paid his attorney by checks dated January 16 and July 31, 1990. The check to pay Shamrock Plumbing and its attorney was dated February 26, 1990. On March 12, 1990, Shamrock Plumbing executed a Release of Lien, which was recorded on April 10, 1990. Respondent has not since reimbursed the owner for his expenditure of $3984.19 because Respondent lacks the money. He applied the August, 1989, payments received for the present job to satisfy obligations arising out of other jobs. Respondent testified that his money problems began when he was not paid for work he performed on other jobs, but they were unrelated to the job involved in this case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h), assessing Respondent for the costs of the investigation and prosecution up to a maximum of $1000; placing Respondent on probation for two years; requiring Respondent to pay the owner $3984.19, plus interest at the legal rate, in restitution; and, if at the end of the two-year probation Respondent has failed to pay the owner in full, imposing an administrative fine of $1500 and suspending Respondent's license for one year. ENTERED this 20 day of May, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20 day of May, 1991. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-8 (first sentence): adopted or adopted in substance. 8 (remainder) : rejected as irrelevant. 9-12 (first sentence): adopted or adopted in substance. 12 (second sentence): adopted that Respondent accepted the final payments. Rejected as unnecessary that Respondent did-not protest the $165 retainage. 13: rejected as unnecessary. 14: first clause rejected as unnecessary. Second clause adopted. 15: rejected as unnecessary. 16-17 and 22: rejected as subordinate. 18-20: adopted or adopted in substance. 21: rejected as unnecessary. 23-24: adopted or adopted in substance. Treatment Accorded Proposed Findings of Respondent first page: adopted or adopted in substance. second page, first incomplete paragraph: rejected as irrelevant, unnecessary, and not finding of fact. second page, first complete paragraph: rejected as unnecessary and irrelevant. second page, second complete paragraph: rejected as unnecessary. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Attorney William S. Cummins Department of Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, FL 32399 James E. Todd, pro se 1621 Truman Rd. Orlando, FL 32807
The Issue In this disciplinary proceeding, the issues are: Whether Respondent committed the violations alleged in the Administrative Complaint issued by the Petitioner; and Whether disciplinary penalties should be imposed on Respondent if Petitioner proves one or more of the violations charged in its Administrative Complaint.
Findings Of Fact Respondent, Brian Vincent Burns ("Burns"), at all times material to this matter, was a certified general contractor subject to the regulatory jurisdiction of the Petitioner. Burns was first licensed on October 26, 1981. Petitioner issued Burns license number CGO 020464. Burns' license expires on August 31, 2012. Action Restoration Inc. ("Action"), is and was, at all times material in this matter, the company where Burns is qualified. On October 24, 2007, Brian Burns-Action Restoration entered a Contractor Agreement ("Contract") with owner, Donnell Bryant, to construct a bathroom addition at Bryant's residence located at 3314 NW 23rd Court, Lauderdale Lakes, Florida 33311. Burns admitted at the hearing that the Contract failed to include any written disclosure statement explaining consumer's rights under the Florida Homeowner's Construction Recovery Fund. The Contract provided a draw schedule detailing the amount of the payment and at which points during the project payments were to be made to Action. The total contract price was $36,000. Per Bryant's Contract, Bryant paid the first draw of $6000.00 down at contract signing and Action started the job. During the job, Burns followed the critical path method. The method consisted of each step of the job being completed before the next could take place because each built upon the other. Action applied for a permit to build the bathroom addition on the house under Burns' contractor's license and became the contractor of record for the project. Action began the job in November 2007. It included excavating, obtaining the soil test, forming up the plywood to form the concrete, putting the rebar in, and pouring. On November 26, 2007, Bryant paid Action $7,250 as draw two when the footing was completed. The next step of the project was the block. Burns hired three workers to pour the concrete block. On or about December 20, 2007, Action put the truss anchors in the wet concrete. On or about December 21, 2007, Action completed the tie beams and was paid $8000.00 for draw three of the contract. At some point, Burns and Bryant agreed to change the trusses to make them more energy efficient and structurally sound for windstorms. The design change delayed the job being finished by the deadline. During December 2007, there was a period when Burns did not return Bryant's phone calls. Bryant was very anxious for the bathroom addition project to be completed and became angry at Burns when he couldn't reach him. Bryant thought Burns had abandoned his job when he didn't see Burns from around the Christmas holiday until after the new year. After the new year, in January 2008, Bryant met with Burns and a third party, Walsh. At the meeting, Bryant determined that Walsh was the foreman for Action who oversaw the work. Walsh never worked for Burns or Action and has never been paid by either. Burns had only met Walsh in 2007 and worked on one previous project with him. Burns knew Walsh to be a mason. From the meeting, Bryant understood that the initial contract work had been transferred to Walsh to complete the bathroom addition project Action had contracted for originally. As a result, Bryant stopped paying Burns and agreed to pay Walsh the remaining sum of $14,000.00 on the contract. After the meeting, Burns continued to work on the Bryant contract off site. He worked to get the new trusses design approved so that the work could move forward at the residential site. Around January 17, 2008, Burns took the new trusses design to the truss shop professional engineers to do the drawings. After approval, Burns took the design to the architect, which was approved on February 1, 2008. Then, Burns processed the drawing though the City of Lauderdale, which approved them on February 18, 2008. After approval by the City of Lauderdale, Burns called Bryant several times, and Bryant never returned his call or responded. Burns never returned to the Bryant residence to work on the job because he thought a new contractor had been hired to complete the job in Action's place. Action had only completed 50% of the job on the contract at the time. Plumbing, electric, duct work, and stucco were left to be done for the bathroom addition to be completed. During the period when Burns was getting the new trusses design approved, Bryant paid Walsh $4000.00, with check number 5761 as a draw, on February 15, 2008. The Contract was amended and stated, "$Total owe $14,000-$4000.00 2/15/08>New Balance $10,000" Walsh's signature was by the total with "pd 5761 2/15"1 Burns admitted at hearing that Action was still the contractor of record because the permit remained open for the project in his name. Burns said, "I made an error in judgment in not going to see to it that it was closed out." Walsh continued to work on Bryant's bathroom addition and got paid monies until June 2008. As Walsh completed portions of the job, Bryant paid him the following: $800 on April 18, 2008, for the wall and tile; $3,500 on June 3, 2008, for the construction of the bathroom; and $325 on June 9, 2008, for the stucco for the bathroom. Walsh also was paid for other construction work beside the bathroom addition for Bryant. Bryant never heard from Walsh again after paying him $325.00 with the June 9, 2008, check. He contacted him numerous times to no avail. The job was not completed. On December 30, 2008, Bryant signed a contract with Complete Property Repair to complete the bathroom addition Action had started. The contract amount was for $36,800. The contract included redoing some of the previous work completed by Action and some upgrades including a two-person Jacuzzi and travertine rock instead of tile. The Charges: In Count I, Petitioner charges Respondent with abandoning a construction project in which the contractor is engaged or under contract as a contractor in violation of section 489.129(1)(j), Florida Statutes. In Count II, Petitioner charges Respondent with failing to include a written statement explaining the consumer's right's under the Florida Homeowners' Construction Recovery Fund in the contract with Donnell Bryant in violation of Section 489.1425(1)(d)1.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order that: (a) finds Respondent guilty as charged in Count I of the Administrative Complaint, imposing as a fine of $2,500, and placing Burns' license on probation for a period of one year; (b) finds Respondent guilty as charged in Count II of the Administrative Complaint, imposing a fine of $250.00; and (c) not imposing any restitution since it was not proven in this matter at hearing. DONE AND ENTERED this 29th day of March, 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2011.
