The Issue Whether respondent on several occasions aided an unlicensed contractor to engage in contracting by obtaining permits on respondent's license for contracting jobs performed by the unlicensed contractor; Whether respondent committed the statutory violations alleged; and If so, whether respondent's license should be suspended or revoked, or whether some other penalty should be imposed.
Findings Of Fact At all times material to the Administrative Complaint, respondent was a certified general contractor in Florida holding License No. CG C000572. Johnnie T. Thomas is the president of J. T. Thomas Construction Company. Mr. Thomas is not a licensed contractor in the State of Florida. Although respondent has used his license to qualify several corporations, the last being Julius Isaac & Association, Inc., respondent never qualified J. T. Thomas Construction Company. Indeed, J. T. Thomas Construction has never been qualified by any licensee. During the time period relevant to this action, J. T. Thomas Construction Company was the name used by Mr. Thomas to engage in the contracting business. On July 25, 1983, J. T. Thomas Construction Company contracted with Hazel N. Jones for the construction of a residence at 11729 Rock Hill Road, Thonotosassa, Florida, in Hillsborough County. Johnnie Thomas signed the contract on behalf of J. T. Thomas Construction Company as "President and Builder." Ms. Jones did not know that Mr. Thomas was unlicensed. James Montjoy drew the plans for the house and recommended Thomas as the builder. The total price for the house was $75,500. The house was started in September of 1983, and on January 30, 1984 final payment was made. After moving into the house, Ms. Jones discovered several problems. In June of 1984 an energy check found that the home was not properly insulated; however, this was apparently corrected in May of 1985. Ms. Jones had several other problems with the home and sent a "punch-list" to Mr. Thomas setting forth the items that needed to be corrected. Although Mr. Thomas admitted at the hearing that there were items that should have been corrected on the punch-list, he also admitted that he did not correct them because he disputed other claims of Ms. Jones. The building permit application for Ms. Jones' home was signed by the respondent. On the building permit application, the contractor was listed as Julius Isaac and Association, Inc. The building permit was issued on August 15, 1983. It listed Julius H. Isaac and Julius Isaac and Association, Inc. as the contractor. The building permit was signed by Julius H. Isaac as agent. Ms. Jones never met Mr. Isaac, never saw him and never knew that he was involved in any way in the construction of her home. In late 1984, Ms. Catherine Farragut, the owner of a building located at 1704 North Nebraska Avenue, Tampa, Florida, contracted with J. T. Thomas to have her building remodeled. Ms. Jones recommended Mr. Thomas to Ms. Farragut before Ms. Jones began to experience problems with Mr. Thomas. Ms. Farragut was not aware that Mr. Thomas was not a licensed contractor. The remodeling of the building was completed in early 1985. The permit for the interior remodeling of the offices at 1704 North Nebraska Avenue was issued on July 23, 1984 to Julius Isaac & Association. Ms. Farragut did see Isaac at the job site in the central parking area; however, Mr. Thomas never advised Ms. Farragut that respondent was involved with the project. On August 20, 1985 J. T. Thomas Construction Company contracted with Evelyn S. Williams to construct a residence at 3620 East North Bay Street, Tampa, Florida. The contract price for the home was 66,000 and payments by check were made to Johnnie Thomas in intervals. Construction on the home began in November 1985. Ms. Williams moved into the home in August of 1986. She discovered some problems with the house, and gave Mr. Thomas a list of the items that needed to be corrected. Mr. Thomas corrected all the items but one. Ms. Williams still has a problem with the roof getting moldy due to water retention. A permit was issued by the City of Tampa Building Department on November 20, 1985, for construction at 3620 East North Bay Street. The permit was issued to Julius Isaac and the contractor of record is stated as Julius Isaac d/b/a Julius Isaac & Associates. Ms. Williams never met Mr. Isaac or saw him; however, Ms. Williams did not go to the job site during construction since the mortgage company was supposed to periodically inspect the house during construction. Ms. Williams was not aware that Mr. Thomas was unlicensed. On August 28, 1986, J. T. Thomas Construction Company entered into a written contract with Ms. Verlie Nelson to construct a residence at 8105 Jad Drive for a price of $102,560. Ms. Nelson thought that Mr. Thomas was a licensed contractor. She never saw Mr. Isaac at the job site, however, she was rarely there because Sun Coast Federal Credit Union was paid to do the inspections. On October 16, 1986, respondent applied for a building permit for 8105 Jad Drive. John and Augusta Thomas were listed as the owners and Julius Isaac & Association, Inc., was listed as the general contractor for the project. On November 7, 1986, the permit was issued by the Hillsborough County Building Department. Julius H. Isaac was listed as the applicant and contractor. John and Augusta Thomas were listed as the owners of the property at 8105 Jad Drive. Mr. Thomas admitted that J. T. Thomas Construction Company built the homes for Ms. Jones, Ms. Nelson and Ms. Williams, and did the renovation on the building owned by Ms. Farragut. Mr. Thomas received the payments for the projects, hired and paid the subcontractors and supervised construction. He also managed the daily affairs of J. T. Thomas Construction Company. J. T. Thomas Construction Company was formed in 1971 under the name Thomas (J. T.) Construction Company. However, the company, as a corporate entity, was dissolved by proclamation in 1973. J. T. Thomas' brother Leslie was the secretary of the corporation and a licensed contractor. He obtained the building permits for the company until be became ill. Thereafter, respondent obtained the building permits for J. T. Thomas Construction Company. Respondent knew that Mr. Thomas was not licensed and could not get the permits himself. Respondent is not a salaried employee of J. T. Thomas Construction Company, and he received no compensation for his services although he was reimbursed for the actual cost of obtaining the permits. Other than obtaining the permits, respondent's only connection with Mr. Thomas' construction projects was to visit job sites before inspections or go to a site if Mr. Thomas asked for his help with a construction problem. However, there was no competent evidence establishing that respondent ever went to the particular job sites involved in this case. Respondent had no responsibilities in connection with the projects and had no authority to take any actions. In essence, respondent was simply "helping" a long time friend. Respondent has been licensed since 1968, and there was no evidence presented of any prior violations or any prior complaints.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding respondent guilty of the act set forth in Section 489.129(e), Florida Statutes, and imposing an administrative fine of $1,500. DONE AND ENTERED this 27th day of May, 1988, in Tallahassee, Florida. DIANE A. GRUBBS 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 27th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5586 Rulings on petitioner's proposed findings of fact by paragraph: 1-8 Accepted generally. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Julius H. Isaac 421 Ella Mae Avenue Tampa, Florida 33602 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil Stephen F. Hanlon, Esquire General Counsel BARNETT, BOLT & KIRKWOOD Department of Professional Post Office Box 3287 Regulation 100 Twiggs Street 130 North Monroe Street Sixth Floor Tallahassee, Florida 32399-0750 Tampa, Florida 33602
The Issue Whether respondent FGCIA should reinstate petitioner as its director or acting director and give her back pay from August 31, 1978, because FGCIA terminated her employment as of that date on account of her race?
Findings Of Fact Jan Marie Tuveson, became the third person to go to work for the FGCIA, although she is not an Indian herself. In February of 1974, she began doing secretarial work and generally assisting Osley Saunooke and John L. Chaves, at the time the FGCIA's director and assistant director, respectively. With Mr. Saunooke's resignation later the same year and Mr. Chaves' resignation in May of 1975, all of the Council's staff work fell to Ms. Tuveson and a secretary whom she hired after consulting the cochairmen of FGCIA's Board of Directors. CODIRECTOR About four months after Mr. Chaves' departure, Ms. Tuveson assumed one of two newly created program coordinator positions. She was seen as "representing" the Miccosukee Tribe, while the other program coordinator, originally Steve Bowers, was seen as representing the Seminole Tribe. Together the program coordinators were to act as codirectors of the FGCIA. In September or October of 1975, Joe Billie succeeded Steve Bowers as codirector. An extremely likeable person, Joe Billie, a Seminole Indian for whom English is a second language, did not spend much time at FGCIA's Tallahassee headquarters. As a result, Ms. Tuveson had almost full responsibility for the staff work of the FGCIA, after Joe Billie became codirector. During this period, she worked on behalf of and dealt with not only Buffalo Tiger and the Miccosukee Tribe, but also the Seminole Tribe, Mike Tiger, Joe Dan Osceola and other Seminole Indians. According to uncontroverted testimony, she treated the tribes "equally." CETA PROGRAM DIRECTOR Shortly after becoming program coordinator, Ms. Tuveson proposed to FGCIA's Board of Directors that FGCIA apply for funds under the Comprehensive Employment and Training Act (CETA). With Howard Tommie, chairman of the Seminole Tribe and cochairman of the FGCIA, dissenting, the Board approved the suggestion, Ms. Tuveson went forward with preparation of a grant application, and a CETA grant was awarded. Ms. Tuveson established and, as CETA program director, oversaw the program funded by the grant. Mr. Tommie's objection to the proposal was that money which, at least in his view, might otherwise have been routed to the Seminole and Miccosukee tribes exclusively was not being administered by the tribes and was being made available to other American Indians, as well. Later Mike Tiger came to share this view as did Joe Billie, who had originally said a CETA grant would be a good idea. Mr. Tommie also felt that administration of a CETA grant would be "a hectic responsibility," Petitioner's Exhibit No. 12, p. 42, for FGCIA. JOE BILLIE RESIGNS At a special meeting of the Board of Directors on November 21, 1977, Joe Billie resigned his position with the FGCIA effective November 25, 1977. Expense account irregularities occasioned the resignation, but Howard Tommie resented Mr. Billie's leaving. According to the minutes of the special meeting: The meeting was then directed to the discussion of the appointment of a new Codirector. Howard Tommie ... felt there should not be a designated Codirector for the Miccosukees or the Seminoles. Bob Travis agreed that each Codirector should be obligated to work for both Tribes. Howard Tommie stated the struc- ture should be changed to suit a state agency because of the fact that the Council now works with all Indians in the State of Florida, not just the Tribes. Petitioner's Exhibit No. 2. Other board members expressed other views, but the position Joe Billie left vacant was not filled, and a board member "directed the staff to prepare alternative organization structures and job descriptions." Petitioner's Exhibit No. 2. REORGANIZATION At its December 6, 1977, meeting, the FGCIA Board decided on organizing staff into an executive director, a deputy director, two program coordinators and a "Secretary III/Bookkeeper," Petitioner's Exhibit Nos. 4 and 5, but the positions were not filled at that time. Although "on the same level as the Deputy Director," the program coordinators were to report to the deputy director, as well as "to the tribes and [were to] be located at the Tribal headquarters most of the time." Petitioner's Exhibit No. 4. On the subject of job descriptions, Joe Wilson, who "was present at the [November 25, 1977] meeting for the Department of Community Affairs as a representative of Mr. Robert Guttman instructed the staff . . . to add the Indian preference in order not to discriminate." Petitioner's Exhibit No. 2. Among the policy changes effected at the December 6, 1977, meeting, was addition of a personnel policy in these words: Preferential consideration will be given to federally recognized Native American appli- cants and/or those with experience in Native American programs. Petitioner's Exhibit No. 4. The Board did not adopt specific job descriptions for the positions decided upon at the December 6, 1977 meeting. ACTING DIRECTOR When the FGCIA Board met on June 23, 1978, it was generally acknowledged that Ms. Tuveson had been FGCIA's acting director for some time. Board member Robert Mitchell, for example, remarked, "Up to the present time you could say that Jan is the real Director, or Executive Director . . . ," Petitioner's Exhibit No. 7, and another board member thought it might be official: "I think we may have given Jan the title of Director. I don't remember." Petitioner's Exhibit No. 7. But, after further deliberations by the board, member Robert Travis' motion to "unhire" Jan as Director and place the [executive director's] position vacant and then Jan would apply for the position along with everybody else," Petitioner's Exhibit No. 7, carried. Later in the same meeting, according to the minutes, Joe Dan Osceola directed the meeting to clarifying whether or not Jan Tuveson would remain as Acting Director for the Council until someone is hired permanently. Ms. Tuveson stated that she would. Joe Dan Osceola made a motion to make Jan Tuveson Acting Director. Cochairman Tiger seconded the motion and it carried unanimously. Although she had acted as FGCIA's director for almost two years and was officially named acting director when the board met on June 23, 1978, it was at this same meeting that Ms. Tuveson first began to fear for her continued employment. Several members of the board expressed the view that FGCIA should hire staff, including CETA program staff, who were of American Indian extraction. Ms. Tuveson herself remarked, during the meeting, "I think that is the intention of the personnel committee that any position that is vacated should be filled with a Native American . . ." Petitioner's Exhibit No. 7. Board member Joe Dan Osceola explained his position: So I say with the Indian programs any Indian program which is designed for the Indians in the law states that it should be run as such, meaning Indians should be in that position. The non Indians, no matter what color it is, there is going to be a time when you all are going to have to switch over to another job. . . . So I believe in Indian movement, I mean if we don't who is going to do it. It has to be the Indians who do it. So, I wish Jan was an Indian, really. Because she has done a good job. Petitioner's Exhibit No. 7. Board member Jo Ann Jones stated, "Any program now in our area should be all Indians." Petitioner's Exhibit No. 7. NATIVE AMERICAN DIRECTOR At its next meeting the FGCIA Board of Directors chose Joe Allen Quetone as executive director of the FGCIA, and voted him a starting salary of $20,000 per year. Mr. Quetone, who is a Native American and a member of the Kiowa tribe of Oklahoma, began as executive director on September 1, 1978, a week after his selection. He has held the position since, and nothing in the evidence suggests that he has done anything other than an exemplary job as executive director. Beginning March 17, 1977, he had worked at FGCIA's headquarters in a CETA position for which Ms. Tuveson had recruited him. A 1973 graduate of Florida State University in philosophy, he began, but did not finish, some graduate public administration courses, before starting at FGCIA. He served as a noncommissioned officer in the U.S. Army, was a paid assistant to a student body president while in college, worked at a car wash and a pizza parlor, tended bar, worked at the Florida Construction Industry Licensing Board as a mail clerk; and, for the year and a half or two year period next preceding the move to FGCIA, worked for the Florida Human Relations Commission. INDIAN PREFERENCE The board went forward with the selection on August 25, 1978, despite the suggestions of Cochairman Mike Tiger and board member Robert Travis that the decision be put off. Cochairman Tiger reported Bob Mitchell's request for deferment, and Jim Hutchinson's request for a postponement, which was stated in a letter and related to the board in his absence, Petitioner's Exhibit No. 1, p. 91, also proved unavailing. A three-member personnel committee had recommended Jan Tuveson, Joe Quetone and Henry A. Williams, Jr., as "highly qualified" to serve as Executive Director. Robert Travis reported on the personnel committee's work to the eight board members present, on August 25, 1978, and described the committee's criteria or "formula" as basically the same thing we've always been talking about; one dealing with the educa- tional background of the person, experience factors, and an Indian preference. Those are the three, or at least the three major things that the committee considered..... Petitioner's Exhibit No. 1, p. 94. The board first voted to eliminate Mr. Williams from consideration, them voted to promote Joe Quetone to Executive Director. The FGCIA board chose Mr. Quetone over Ms. Tuveson on the basis of their respective racial origins. Other factors may have entered in, as well. Published reports of the possibility of a lawsuit on race discrimination grounds did not endear Ms. Tuveson to certain board members, see, e.g., Petitioner's Exhibit 1, p. 108-111; and Howard Tommie, among others, seemed still to harbor resentment over the establishment of the CETA program. At least one board member feared a schism between the Seminole and Miccosukee tribes. Mr. Travis remarked: I think Jan kept the Council together. My preference is I would prefer to vote for her; but, if that vote will cause a split between the S[e]minoles and Miccosukees, and the organizations, the staff she is supposed to help, then my overall concern is for the Indian people. Petitioner's Exhibit No. 1, p. 144. Mr. Travis was one of six board members who voted for Mr. Quetone. Two members abstained. Joe Dan Osceola explained his position: I'm not against white people, believe me; black, or anybody, even other Indians.... There's Indian programs--there's such a law as Indian Preference Law. There used to be a policy; but it's a law as of 1967.... I know a lot of you don't share my opinion. ... Petitioner's Exhibit No. 1, p. 122. Mr. Osceola may have been referring to an informal legal opinion which John Chaves, himself raised as an American Indian, had given as legal counsel to the FGCIA's CETA program, to the effect that the FGCIA could not lawfully implement an Indian preference. FGCIA had nevertheless adopted such a policy, although, over objection of the Seminole and some other board members, the phrase "and/or those with experience in Native American programs" had been added. (During the federal trial, Mr. Tommie testified that he did not think Ms. Tuveson had such experience. Petitioner's Exhibit No. 12, p. 52) At least one other board member adhered to the FGCIA's preference policy in the course of the selection process on August 25, 1978. Petitioner's Exhibit No. 1, p. 135. Ms. Tuveson testified that jokes about her race that various Seminole members of the FGCIA's board had made from time to time seemed much less amusing in retrospect, after the August 25, 1978 vote. NO OFFER After it was decided that Mr. Quetone would begin work on September 1, the Board began to turn to other matters, when an "Unidentified Female Voice" inquired: Mr. Chairman? Before we start discussing the future business, do you think it's possible we could get some clarification as to Jan's termination date? Petitioner's Exhibit No. 1, p. 176. The cochairmen responded and Joe Dan Osceola expressed his views: COCHAIRMAN TIGER: All right. They need that, too; otherwise, we'd have to do something, because--I mean, she's still on the payroll. COCHAIRMAN TOMMIE: I think one takes care of the other. Do you want to go on record as terminating Jan Tuve- son as our director? ... Petitioner's Exhibit No. 1, p. 176. JOE DAN OSCEOLA: ... You have a certain day that when somebody has come in that you are supposed to move out of their office ... You clean out your table and desk and everything else because another guy is taking your place. I really can't see all this question on this. Petitioner's Exhibit No. 1, p. 177. After a confusing colloquy, Joe Dan Osceola raised the question whether Ms. Tuveson was "quitting the Council": JO ANN JONES: I know what you're saying. She's going to get the pay for those two weeks. COCHAIRMAN TOMMIE: Yes, if she wants to stay on the payroll for an extra two weeks, then we've just got to make the provisions... Petitioner's Exhibit No. 1, p. 180. COCHAIRMAN TIGER: I think we understand where we stand. ... JAN TUVESON: Effective September 1st, I am on two weeks' notice; right? CO-CHAIRMAN TIGER: No. Petitioner's Exhibit No. 1, p. 181. JOE DAN OSCEOLA: Is she quitting the Council? That's one part I'm not familiar with, if she's quitting. That's one thing I haven't heard from Jan, that she's not going to be (inaudible) for Miccosukee or (inaudible). That's one thing I don't know. JAN TUVESON: (Inaudible) I'm not (inaudible) coordinator right now, Joe, and I'm acting director. JOE DAN OSCEOLA: Yes, that's what I know. JAN TUVESON: And I haven't been offered the position of coordinator, which would be ludicrous in my opinion, anyway, since it would be a backward step for me. But, the point is, I think, on September 1st, am I to be given two weeks' paid notice? Or am I not to be given any notice at all? Petitioner's Exhibit No. 1, p. 183. Neither the Board of Directors as a whole nor any individual board member offered Ms. Tuveson employment in any capacity beyond August 31, 1978. EDUCATION AND EMPLOYMENT A 1972 graduate of the University of Texas, with a major in English, Ms. Tuveson also attended Catholic University of America in Washington, D.C. as an undergraduate. After graduation, she worked as assistant manager and advertising director for "Hook'm Horns Night Club" in Austin, Texas. In Tallahassee, she worked as public relations assistant to the Sesquicentennial Committee and then for a department store, also in public relations; at Gayfer's, she had supervisory responsibilities, worked on a budget, and wrote copy for radio, television and newspapers, Petitioner's Exhibit No. 8, at a salary of $8,000 to $10,000 a year. She began taking graduate courses at Florida State University after she went to work for FGCIA, first in mass communications then in public administration, but did not earn a degree in either field. After she left the employ of the FGCIA, Ms. Tuveson sent out 25 to 30 applications for jobs and had several interviews. In every interview the matter of her losing her job at the FGCIA arose. Receiving no job offers, she applied to law school in October of 1978, and began in January of 1979. She graduated from law school at Western State University in June of 1981, finishing an accelerated program which left little time for gainful employment. She did not work the whole of the year 1982 partly because she was ill and partly because she took time off to study for a bar examination, which she has never succeeded in passing. She was employed in 1983 in the legal department of the Alamo Savings & Loan Association in San Antonio, Texas. In May of 1984 she moved back to Tallahassee and found work at Electronic Communications. During 1977, the last full year Ms. Tuveson worked for FGCIA, she was paid $18,736.23. The following year FGCIA paid her $15,948.70 for the work she did from January 1, 1978 through August 31, 1978, representing an annual rate of $21,264.93. Her 1979 income totalled $1,818.97. In 1980, Ms. Tuveson's income fell almost to nothing. She earned approximately $2,500 in 1981, and about the same in 1982. Her 1983 income was $10,832.38 and she made $11,526.87 in 1984. At the time of the hearing she was still working for Electronic Communications. Petitioner's proposed recommended order and respondent's proposed findings of fact, conclusions of law and recommended order were filed on August 12 and 13 1985, respectively. Proposed findings of fact have been adopted, in substance, to the extent they are supported by the weight of the evidence, except where they are cumulative, subordinate or immaterial.
The Issue Whether or not Respondent's certified general contractor's license should be disciplined because he aided or abetted an uncertified or unregistered person, knowingly combined or conspired with an uncertified or unregistered person by allowing his certificate or registration to be used by an uncertified or unregistered person with the intent to evade Chapter 489; acted in the capacity of a contractor under an unregistered or uncertified name; engaged in fraud, deceit, or gross negligence, incompetence, or misconduct in the practice of contracting as alleged, in violation of Subsections 489.129(1)(e),(f),(g) and (m), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with the responsibility to investigate construction activities in Florida and, where indicated, to file Administrative Complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and other rules and regulations promulgated pursuant thereto. During times material, Respondent, Richard L. Melvin, was licensed as a general contractor, having been issued license number CG C022926. During times material, Respondent did not qualify Jeffrey Gaston or Tropical Exteriors & Services, Inc. (TESI), nor did said entity or contractor's name appear on Respondent's license. During times material, Jeffrey Gaston d/b/a TESI, was never licensed nor qualified to do business as a contractor in Florida. During times material, Respondent was not a licensed roofing contractor. On or about March 31, 1987, Jeffrey Gaston contracted with Deborah and Clinton Weber to repair a roof and renovate a bathroom at their residence for the sum of $5,000.00. Respondent's name, license number, address and telephone number was listed on the Gaston/Weber contract. Jeffrey Gaston d/b/a TESI entered into a contract with Wilfred Butler on January 12, 1987, to replace a back porch at his residence. Respondent's general contractor's license number was listed at the top of the agreement between Gaston-TESI/Butler. Checks drawn by Butler were made payable to Respondent/TESI. Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the Butler project. (Petitioner's Exhibit 7.) Respondent admitted to authorizing Gaston or TESI to use his name and certificate number on contracts. Respondent was aware of approximately 20 contracts and several other permits wherein Gaston/TESI obtained the contracts or permits by using Respondent's name and license number. Respondent admitted receiving approximately $2,000.00 for supervising TESI. Respondent never disassociated himself from Jeffrey Gaston until May 31, 1987. Petitioner introduced ten contracts for work in Pinellas County from December 1986 to May 1987, with Respondent's name and state certification number with Jeffrey Gaston d/b/a TESI listed as the contractor. (Petitioner's Exhibit 9.) Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the installation of aluminum soffit and fascia on the Stitches' home situated at 111 Aurora Avenue North, Clearwater, Florida. Respondent did not supervise the installation of aluminum soffit and fascia on the Stitch's residence. Respondent, as a general contractor, is responsible for all phases of work for which he contracted for and/or obtained permits. Respondent was aware that Jeffrey Gaston was not a licensed contractor in Florida. Jimmy Jimenez has never been a licensed contractor in Florida. J & J Construction Company was qualified in February 1988, under Respondent's license number, CG C022926. Thereafter, during February 1989, J & J Construction was qualified under Respondent's license number RC 0058448. Respondent did not attempt to qualify J & J Construction until he was cautioned by Petitioner's investigators Steven Pence and Dennis Force, that his construction activities amounted to "aiding and abetting an unlicensed contractor." On or about December 11, 1987, Wiley Parks, Jr., entered into a contract with J & J Construction to perform construction work and remodel a home for Parks located at 1722 West Arch Street, Tampa, Florida. In conjunction with that contract, a second contract was submitted by J & J Construction for Mr. Parks, although unbeknownst to him, which utilized Respondent's name and contractor's license number at the top of the agreement. Wiley Parks spent a great deal of his time observing the construction and remodeling work by J & J. Respondent was only seen by Wiley Parks when they met at a local bank to cash a check which represented a draw submitted by Respondent for construction work done at the Arch Street construction project. Respondent obtained a permit for the Parks job on January 6, 1988, which was prior to the time he qualified J & J Construction as the entity through which he would conduct construction business. Respondent, although required to do so, never called for a final inspection on the Parks job. The floor joists at the Parks job were disapproved by the Hillsborough County Building Department and were never repaired by Respondent. Employees of J & J were observed working at the Parks job site on January 4 and 8, 1988. Respondent was, on two occasions, the subject of prior disciplinary action by Petitioner during 1987. On one occasion, probable cause was found on August 12, 1987 and the case was closed by issuing a letter of guidance to Respondent. On the second occasion, probable cause was found on October 7, 1987. Final action was taken on February 11, 1988, whereby an administrative fine of $1,000.00 was imposed against Respondent or, alternatively, a 30-day suspension of his license. Respondent paid the administrative fine within the allotted time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's general contractor's license number CG C022926 be REVOKED. 1/ RECOMMENDED this 26th day of March, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 26th day of March, 1990.
The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
The Issue The issues in the case are whether Respondent violated Subsections 489.126(2), 489.129(1)(i), 489.129(1)(j), 489.129(1)(g)2., and 489.129(1)(m), Florida Statutes (2004- 2005),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Ms. Eichelberger was a certified contractor, having been issued license number CRC 1326804 by the Construction Industry Licensing Board (Board), and was certified with the Board as doing business as American Pride Building Company, LLC (American Pride). At all times material to this proceeding, Ms. Eichelberger was the primary qualifying agent for American Pride. On February 20, 2005, Duane Stanford (Mr. Stanford) entered into a contract with American Pride to construct a house on property owned by Mr. Stanford at 36 Southwest 13th Street, Cape Coral, Florida. The contract price for the project was $206,300.00. On February 20, 2005, Mr. Stanford paid American Pride $30,000.00 or approximately 14 percent of the contract price as the initial payment on the project. The contract did not provide that American Pride could retain the $30,000.00 if no work was performed on the project. From February 2005 to August 2005, American Pride performed no work on the project. On September 16, 2005, American Pride applied for a building permit with the City of Cape Coral Building Department. The permit application was approved, but American Pride never picked up the permit from the building department. Mr. Stanford received a letter dated November 8, 2005, from American Pride advising Mr. Stanford that there had been a dramatic increase in the costs of labor and materials and that they were passing the increase in costs to Mr. Stanford in the form of a ten percent increase in the contract price. On December 20, 2005, Mr. Stanford and American Pride entered into an agreement in which Mr. Stanford agreed to pay an additional $20,630.00 for the increase in labor and material costs. American Pride agreed to not impose any additional increases in the contract price, and Mr. Stanford agreed to pay the ten percent increase when the certificate of occupancy was issued. After December 20, 2005, American Pride failed to commence work on the project and failed to return the $30,000.00 that Mr. Stanford paid on February 20, 2005. Mr. Stanford terminated the contract in May 2006. From the time Mr. Stanford entered into the contract until the time he terminated the contract, Mr. Stanford did not prevent American Pride from commencing and completing the project. In addition to the $30,000.00 initial payment, Mr. Stanford has incurred in costs in the amount of $5,085.15 for construction loan costs and $2,500.00 for attorney's fees relating to the project. The total amount of investigative costs incurred by Petitioner in prosecuting this case, excluding costs associated with attorney's fees, was $105.50.2 On October 12, 2005, a Final Order Approving Settlement Stipulation was entered in the case of Department of Business and Professional Regulation v. Alexandria Eichelberger, Case No. 2004040305. As part of the stipulated settlement agreement, Ms. Eichelberger agreed to pay an administrative fine of $1,500.00; pay the investigative costs of $423.09; complete seven hours of continuing education; and make restitution to Harry Dorsey in the amount of $3,493.00. The settlement agreement was in settlement of an administrative complaint alleging that Ms. Eichelberger had violated Subsections 489.129(1)(g)1., 489.129(1)(m), and 489.129(1)(l), Florida Statutes. By letter dated March 26, 2007, Ms. Eichelberger surrendered her license number CRC 1326804, effective April 2, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Alexandria Eichelberger violated Subsections 489.126(2), 489.129(1)(g)2., 489.129(1)(i), 489.129(1)(j), and 489.129(1)(m), Florida Statutes; revoking her license; imposing a fine of $1,500.00 each for the violations contained in Counts I, II, and III of the Administrative Complaint for a total fine of $4,500.00; requiring her to make restitution to Duane Stanford in the amount of $37,585.15 for consumer harm suffered; and requiring her to pay the investigative costs of $105.50. DONE AND ENTERED this 20th day of April, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 April, 2007.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, James Cordray, was licensed as a registered mechanical contractor by the Florida Construction Industry Licensing Board, (Board), under license Number RM0016993, and Cordray Electric Company, Inc., was qualified by the Respondent under his license with the Board. Respondent was President of both Cordray Electric, Inc. and Sharp Construction. The Florida Construction Industry Licensing Board is now and was at all times pertinent to the allegations contained in the Administrative Complaint, the state agency responsible for licensing of contractors in Florida. On January 8, 1985, Robert Lee Johns entered into a contract with Sharp for the construction of a dwelling in Tampa, Florida. The contract was executed by Johns as owner and by Sondra D. Thompson Sharp's Vice President. Respondent was not present when the contract was signed. It was not until three days later, in Sharp's office, that Mr. Johns met Respondent and at that point, Ms. Thompson identified Respondent as President of the company. As a result of their conversations, Mr. Johns was led to believe that Respondent was to be the contractor on the construction of his house. Mr. Johns arranged financing for the project through Amerifirst Savings Bank and construction was to begin on or about June 19, 1985. The terms of the contract provided that work was to be completed within 125 working days from the date of start of construction. During the period of construction, several draws against the construction loan were made by Respondent's firm with the last draw taking place on September 23, 1985. With that draw, $45,124.00 was paid to Sharp Construction Company. When construction stopped before the house was completed, Mr. Johns first spoke with Ms. Thompson who indicated she would try to see what had caused the liens to be filed against the property and why construction had stopped. After two weeks without an answer, Mr. Johns went to see Respondent in person at his office on or about December 18, 1985. During the conversation, Respondent blamed Ms. Thompson for the difficulty, saying that she had paid bills on other projects with the draw money from the Johns account rather than paying the bills due on his property. At this point, according to Respondent, it was out of his hands and repeated questioning by Mr. Johns met with evasive answers. As a result of this conversation, Mr. Johns immediately discharged Sharp. Thereafter, acting as his own general contractor, Mr. Johns arranged with other subcontractors to complete the items remaining to be done on the house. At this point, the kitchen cabinets had been installed and the exterior walls had been stuccoed, but neither the wiring nor the plumbing had been completed nor was the drywall installed. Though the contract cost for the construction was supposed to be $56,830.00, by the time Mr. Johns finished paying for the work left undone by Sharp the total cost to build the residence was somewhat in excess of $61,000.00. This figure was arrived at by adding the total amount of unpaid bills for work done or materials furnished on the house unpaid at the time Sharp stopped work, ($20,225.00); the total amount of bills paid on the construction by Sharp while it was doing the work, ($26,205.99); and $16,125.00 paid by Mr. Johns for work left undone. On March 26, 1985, Kathy M. Rodriguez entered into a contract with Sharp for the building of a residence in Tampa with a purchase price of $59,900.00. As in the previous case, Respondent was not present at the signing of the contract and it was executed on behalf of Sharp by Ms. Thompson. Ms. Rodriguez made a down payment of $20,000.00. Because of some difficulty with the city, it was impossible to start work on this project right away. It was agreed that work was to start in August, 1985, when the difficulty with the city was supposed to be resolved. Construction did not begin as scheduled, however, and Ms. Rodriguez began repeated calls to Sharp's office, attempting to reach Respondent. She finally spoke with him in October, 1985, at which time he indicated that work would soon start. However, shortly after that conversation, Ms. Thompson advised Ms. Rodriguez there might be some problems with the building because Sharp was having financial difficulties. At this point, Ms. Rodriguez and her attorney met Respondent at his office in early November, 1985. At this point, only the footers for the house had been dug and poured. Ms. Rodriguez asked if she could get her deposit back and deal with another contractor in light of the possibility that Sharp's financial problems might interfere with construction. Respondent then told her he had no intention of filing bankruptcy but, if she desired, would reimburse her the $20,000.00 she had placed as a deposit in December, 1985. He admitted he was having some difficulties and that her deposit had been used to buy material for other projects. Sharp did no further work on the project. Ms. Rodriguez was not given her deposit back and she thereafter filed a complaint with the police. In addition, she was required to pay a subcontractor $435.00 additional for digging and pouring the footer. Mr. Cordray is currently repaying Ms. Rodriguez the $20,000.00 consistent with an Order of the Circuit Court. His payments are current. On July 23, 1985, Geralde J. Upcavage entered into a contract with Sharp for the building of a residence to be valued at $29,428.00. Though the contract was signed by Ms. Thompson for Sharp, Respondent was present at the signing as President of the company and the contractor with whom Mr. Upcavage was dealing. No deposit was called for in the contract nor was one given. Financing for the project was secured with Pioneer Savings Bank which agreed to pay all draws directly to Sharp. Construction on the Upcavage residence started in either July or early August, 1985 and stopped at some date prior to November 13, 1985, probably in mid-September. Mr. Upcavage is not sure of the exact time. At the time construction was stopped, the slab was poured, the footers were in, and basic plumbing had been installed. The bank had issued one draw in the amount of $4,153.00 on or about October 4, 1985. When the construction was stopped, Mr. Upcavage contacted Ms. Thompson and the Respondent several times. Respondent stated that the work stoppage was due to a delay in delivery of certain materials but no additional work was ever done on this property. Mr. Upcavage also received several notices from subcontractors that they had not been paid. The subcontractors included CastCrete, (concrete); the plumber; the fill dirt supplier; and others. When Mr. Upcavage received these notices, he spoke with Respondent who told him not to worry about it - this was a normal situation. At that time, Respondent said nothing to Mr. Upcavage about experiencing any financial difficulties. On November 13, 1985, CastCrete Corporation filed a lien against the property for $351.50. When Mr. Upcavage was notified of this lien he immediately called Ms. Thompson who said that Cordray Electric Company was going bankrupt. At this point Mr. Upcavage prepared a handwritten release which he prevailed upon Respondent to sign, which he, Mr. Upcavage, believed released him from any further obligation to deal with Sharp. When he received the signed release, Mr. Upcavage paid the other suppliers off prior to their filing liens and he satisfied the lien filed by CastCrete plus a recording fee. The total amount he paid to satisfy the lien and the unpaid subcontractors and suppliers was somewhat in excess $2,000.00. After securing the release from Respondent, Mr. Upcavage contracted with another contractor who was recommended by Ms. Thompson. This contractor got the complete construction file from Sharp and completed the work for an additional $2,000.00. At no time was Mr. Upcavage ever reimbursed by Respondent for the amounts he had to spend over and above the contract price to have his house completed. At the time the Upcavage contract was signed in June, 1985, subcontractors and suppliers were already complaining. Ms. Thompson advised Respondent of this and it is clear Respondent was aware of the situation. Ms. Thompson started working for Sharp in 1983 as a salesperson. At that time the company was owned by Mr. Sharp, a licensed builder. Respondent later took over the firm. As the vice president in charge of sales she was to negotiate with prospective purchasers, estimate the cost of construction, and enter into contracts for construction at that price, approved by Respondent. Once the contract was signed, it was also her responsibility to line up the subcontractors and supervise construction. She did all of this even though she had no experience in the construction business and was not licensed as a contractor. She solicited the contracts in issue here. Under the routine practice in Sharp's office and that of Cordray Electric, Inc., when suppliers' subcontractors' bills were received, she would list the amount on a running account sheet she maintained for each construction project as appropriate, and then send them to Mr. Henry, the bookkeeper, to pay. She did not keep nor did she see the corporate books. The working arrangement she had with Mr. Henry for the payment of subcontractors and suppliers called for the oldest bills or those from suppliers who were currently providing supplies to be paid first. The others had to wait. Mr. Henry contends that he was instructed by Ms. Thompson as to what bills were to be paid and from which draw installment the payments were to come. Ms. Thompson denies this, stating that she did not receive the draw checks which went directly to Mr. Henry when the mail came in. In evaluating the relative merits of the testimony, it would appear, and it is found, that checks were delivered directly upon receipt to the bookkeeper who paid them in accordance with the above-described protocol. In any case, both Thompson and Henry told Respondent that bills could not be paid. Ms. Thompson had authority in writing from Mr. Angel Gonzales, vice president of Sharp and a director of Cordray Electric, Inc., a licensed contractor, to pull permits on his license. He was, however, to have been told what projects his license was being used for. Ms. Thompson indicates that she would apply for permits under Sharp's name which had been qualified by Mr. Gonzales. In each of the cases involved here, however, the permits issued reflected Cordray Electric, Inc., as the contractor of record. Ms. Thompson does not understand why this happened, and no evidence was introduced by any party to explain it. Construction was stopped on the Johns' residence because the subcontractors and suppliers had not been paid on the prior job they had done for Sharp. When subcontractors would complain, Ms. Thompson would try to pacify and satisfy them. At the beginning, they were advancing credit to Sharp Construction but this practice quickly stopped. Ms. Thompson's cost estimates were figured on a square foot basis in these three contracts, following a procedure she had always followed. Both Mr. Johns and Mr. Upcavage had their own plans, but Sharp provided the plans for the Rodriguez construction to her specifications. Ms. Thompson ultimately resigned from her position with Mr. Cordray because she was uncomfortable with the way things were going. A lot of homeowners were being hurt and she was frustrated with her inability to get any work done.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered mechanical contractor in Florida be revoked. RECOMMENDED this 18th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 18th day of August, 1988. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James C. Cordray 1526 Rivershores Way Tampa, Florida 33602 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Respondent's License as a general contractor should be revoked for alleged violation of Sections 468.112(2)(a) & (c), Florida Statutes. Respondent was not present at the hearing although notice of hearing had been provided him under date of February 17, 1976. Accordingly, the hearing was conducted as an uncontested proceeding.
Findings Of Fact E.J. Lamberth, III, holds general contractor certification number 006734. Addition Builders, Inc., Miami, Florida was registered as a certified general contractor on July 16, 1974 with Respondent as the qualifying individual thereon (Exhibits 6 & 7). On August 16, 1975, Respondent applied for a building permit from Metropolitan Dade County, Florida, for the purpose of adding a den to the home of Mr. and Mrs. S.A. Cohen, 7525 Southwest 77nd Court, Miami, Florida. The contractor for the job was listed as Addition Builders, Inc. Permit Number BS15057 was issued on August 19, 1974 (Exhibit 1.) On August 6, 1974, Respondent applied for a building permit from the City of North Miami, Florida for the addition of a bedroom and bath at premises owned by Mr. & Mrs. Michael J. Retter, 416 N.W. Opa Loka Boulevard, North Miami, Florida which showed Addition Builders, Inc. as the contractor. Permit A2860 was issued on August 20, 1974 (Composite Exhibit 2.) The work to be performed as set forth in the above permits was pursuant to contracts between the owners and Addition Builders, Inc. as contractor (Exhibits 5 & 8.) Acting upon complaints filed by the owners of the property involved in the above two contracts, Mr. William F. McDonald, a field investigator for Petitioner, met with the Respondent on February 21, 1975. In a voluntary statement made to Mr. McDonald and Mr. James Brooks, another investigator, at that time, Respondent admitted that he had not actually supervised either job but had depended upon Addition's superintendent to do so, and that he became the qualifying general contractor for Addition as a result of a newspaper advertisement. As part of his investigation, Mr. McDonald established that Respondent had been employed as a recreation supervisor by Metropolitan Dade County since January 9, 1963. McDonald also visited both of the homes in question and observed that the work under the contract was incomplete in February, 1975 (Testimony of McDonald, Exhibits 4, 5 & 9.) Respondent was never seen by owner Retter during the course of the work. Approximately 60 percent of the work was completed by Addition on this job, but the owner was obliged to complete the remainder himself (Testimony of Michael Retter.) Respondent advised Addition by letter that, effective December 24, 1974, he was resigning as general contractor for the firm. On February 20, 1975, the building official of the City of North Miami wrote to Respondent advising that they had received complaints on the stoppage of work at the Retter residence and requesting expedition of completion. Respondent answered that he had disassociated himself from Addition Builders, Inc. (Testimony of Lindblad, Composite Exhibit 3A & B.)
Recommendation That the certification as a general contractor of E.J. Lamberth, III, Number 0006734, be revoked. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Barry Sinoff, Esquire Blackstone Building Suite 1010 Jacksonville, Florida 32202 Mr. E.J. Lamberth, III Addition Builders 7251 N.E. 2nd Avenue Miami, Florida 33138
The Issue The issue for determination is whether the Intervenor was properly qualified to complete the construction project contemplated by Invitation to Bid No. DCF-03211120 (ITB)
Findings Of Fact The Department issued the ITB for a construction project, involving the re-roofing of Buildings 1 and 2 at 12195 Quail Roost Drive, Miami, Florida. The ITB was published in the Florida Administrative Weekly on December 24, 2008. The ITB outlined the terms and conditions for responsive bids. The ITB indicated, among other things, that all sealed bids were required to be submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, by January 15, 2009, at 2:00 p.m. Leo Development submitted its sealed bid at the location and by the date and time, in accordance with the ITB. FBM submitted its sealed bid by the date and time, but at a different location—the offices of Russell Partnership— contrary to the ITB. All other bidders submitted their sealed bids at the location and by the date and time, in accordance with the ITB. The Department’s architect of record on the project, Russell Partnership, and one of its principals, Terry Holt, performed the examination and bid tabulation. Mr. Holt, a registered architect for approximately 36 years, was very familiar with the procurement process and had extensive experience in determining whether a bidder was licensed by DBPR in order to complete the work contemplated for a project. The sealed bids submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, on or before January 15, 2009, at 2:00 p.m. were as follows: All Time Roofing, with a bid of $73,400.00; Taylor Roofing, with a bid of $59,708.00; Leo Development, with a bid of $54,109.00; John W. Hunter Enterprises, with a bid of $75,000.00; and Trintec Construction, with a bid of $75,500.00. 9. FBM’s bid was $71,600.00. Mr. Holt determined that Leo Development was the lowest bidder. FBM’s bid was not considered as being non-responsive. Additionally, Mr. Holt reviewed Leo Development’s website to ascertain as to whether any factors existed to disqualify Leo Development. The website failed to reveal any basis for Mr. Holt to disqualify Leo Development. Having discovered no basis to disqualify Leo Development as the lowest bidder, Mr. Holt submitted the list of bidders, with their bids, to Bill Bridges, the Department’s senior architect and a registered architect for approximately 25 years. Mr. Bridges was the person responsible for oversight of the ITB process. As Leo Development was the lowest bidder, Mr. Bridges reviewed the website of the Florida Department of State, Division of Corporations (Division of Corporations) in order to ensure that Leo Development was registered with the Division of Corporations. His review revealed that Leo Development was a fictitious name properly registered to Leo Premier Homes, LLC. Further, Mr. Bridges performed a license background check on Leo Development in order to ensure that Leo Development was licensed by DBPR. Mr. Bridges reviewed DBPR’s website, which revealed that Frank Anthony Leo was the owner of Leo Development and that the following licenses were issued by DBPR: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Development; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Development; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Development. Mr. Bridges confirmed and was satisfied that Leo Development was properly licensed to complete the work contemplated by the ITB. Mr. Bridges recommended that Leo Development be awarded the ITB as the lowest responsive bidder. FBM filed a written protest (Initial Protest) of “its exclusion from the bid tabulation.” The Department issued a Final Order Rejecting Bid Protest (Final Order) on February 19, 2009. The Final Order provided in pertinent part: FBM was determined non-responsive because the bid was not presented at the time and place specified in the ITB. . . FBM’s formal written protest alleges that FBM, on the date of the bid submission/bid opening, was misdirected as to the location of the bid opening. . . . FBM’s protest must be rejected because it does not state a claim that could entitle it to relief. . . In the context of a bid protest proceeding . . . the protest must adequately allege that the protestor could obtain the contract award or otherwise benefit should the protest be successful. . . Assuming all of FBM’s factual allegations are true and that those facts entitle FBM to have its bid considered, FBM would still be entitled to no relief. Had FBM’s bid been accepted, FBM would have been the third lowest of six bidders. FBM’s formal protest does not allege that the lowest and second lowest bids were deficient in any manner. FBM was not injured in fact, because it still would not have received the contract award. Accordingly, FBM’s formal written protest is REJECTED. No appeal was taken by FBM of the Department’s Final Order rejecting FBM’s Initial Protest. Among other findings, the Department’s Final Order on FBM’s Initial Protest found that, taking FBM’s allegations as true, FBM would have been the third lowest bidder. FBM would not have been the second lowest bidder. The parties agree that the holder of a certified building contractor’s license and a certified roofing contractor license would be permitted to complete the work contemplated by the ITB. Subsequent to the opening of the sealed bids, Leo Premier Homes, LLC, registered the fictitious name of Leo Roofing & Construction with the Division of Corporations. After the registration with the Division of Corporations and after the Department’s Final Order, licenses were issued by DBPR. As to the licenses issued, the record of the instant case provides2: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Roofing & Construction; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Roofing & Construction; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Roofing & Construction. The licenses reflect the same license numbers, as before, and only the fictitious name is different on each license to indicate Leo Roofing & Construction.3 The contract for the ITB was entered into between the Department and Leo Development. In these proceedings, the Department incurred costs in the amount of $1,311.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing FBM General Contracting Corporation’s Protest and awarding costs in the amount of $1,311.05 to the Department of Children and Family Services. DONE AND ENTERED this 21st day of August 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 21st day of August, 2009.
The Issue Whether Respondent, Great Southwest Corporation, discriminated against the Petitioner, Demetrio A. Walters, when Respondent terminated Petitioner's employment.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing the following relevant findings of fact are made: Petitioner, a black, hispanic male, was employed by Respondent sometime around September 1, 1988 as a journeyman carpenter on the Respondent's Tampa Bay Convention Center Project. Respondent is an employer within the meaning of the Section 760.02(6), Florida Statutes. Petitioner's employment was terminated on March 31, 1989, and Respondent's stated reason for Petitioner's discharge was insubordination and failure to follow instructions necessary to carry out his daily activities. Respondent is not a party to any formal collective bargaining agreement. Therefore, it was not unusual for the Respondent to require carpenters to perform work which normally would have been otherwise performed by laborers or some other craft. However, this policy was applied to all carpenters working on the Tampa Bay Construction Project regardless of the race or national origin. Petitioner resented being required to perform work normally reserved for laborers or other crafts, and, as a result, this created problems between the Petitioner and his immediate supervisor. Petitioner did not always follow instructions given to him by his immediate supervisor to perform a certain task or to perform a certain task in a certain way, and on occasion would be absent from his work station during working hours without permission from his immediate supervisor. At all times material to this proceeding, Gene Raulerson was the Petitioner's immediate supervisor while working with Respondent on the Tampa Bay Construction Center Project. Gene Raulerson frequently directed profanity at all of his subordinates, and treated all of his subordinates in a rude and disrespectful manner. Raulerson cursed and called Petitioner offensive names, and even called Petitioner's mother an offensive name, and treated Petitioner in a rude and disrespectful manner. However, there was no evidence that Raulerson treated Petitioner any differently that other carpenters on the project because of his race or national origin or that Raulerson discharged the Petitioner because of his race or national origin. Respondent has an affirmative action program that prohibits discrimination against any individual based upon inter alia race or national origin.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Demetrio A. Walters, was not discharged due to his race or national origin in violation of Section 760.10, Florida Statutes, and that the Petition for Relief be dismissed. DONE and ENTERED this 8th day of March, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 8th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner has submitted a notarized statement that he is black and hispanic and has no problems working with people of any color or race, with a list of names of people attached that he has worked with. Although it would be stretching it to consider this as Proposed Findings of Fact, I have found the Petitioner to be black and hispanic and the balance of this statement is not relevant or material. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. - 3. Adopted in Findings of Fact 2, 1, and 3, respectively. 4. Adopted in Findings of Fact 8 and 9. 5. - 7. Adopted in Finding of Fact 4. 8. Adopted in Finding of Fact 6 but modified. 9. - 10. Adopted in Findings of Fact 9 and 10, respectively. COPIES FURNISHED: Dana Baird, General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ronald M. McElrath Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Demetrio A. Walters 1716 Hartley Road Tampa, FL 33619 Charles R. Nixon, Esquire Vice President/General Counsel Rooney Enterprises, Inc. 3333 Lee Parkway P.O. Box 19000 Dallas, TX 75219 James Clemmenen, Vice President Great Southwest Corporation Post Office Box 24748 Tampa, FL 33623-4748
The Issue Whether Petitioner was wrongfully demoted from her position as a Service Technical Coordinator with Respondent because of her gender and/or perceived handicap, in violation of Subsection 760.10(1)(a), Florida Statutes. Whether Petitioner was sexually harassed or subjected to a hostile work environment condoned by Respondent, due to her gender or perceived handicap, in violation of Subsection 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Mary L. Hakami (hereinafter "Petitioner"), is a resident of the State of Florida. Respondent, Sears Roebuck and Company (hereinafter "Respondent"), is a corporation licensed to do business in Florida and is an employer under the Florida Civil Rights Act of 1992. Petitioner was hired by Respondent in October 1989, at its Altamonte Springs auto center in the position of tire installer and worked at the Altamonte Springs location for a total of seven years. During that period she was promoted two times. Petitioner was first promoted to the position of Auto Technician and later to the position of Service Tech Coordinator. During the relevant time period Petitioner was the only woman employed as an auto mechanic at Respondent's Altamonte Springs or at the East Colonial locations. The auto repair service industry is one that is dominated by male employees. Douglas Gill (hereinafter "Gill") has been the Auto Center Manager for Respondent's Altamonte Springs location for six years. As such, Gill was, during the relevant time period, the Auto Center Manager for the Altamonte Springs Sears location and had responsibility for, inter alia, running the auto center, including the personnel and profitability. Gill came to know Petitioner after he started working at the Altamonte Springs location, where she was already working in the position of Auto Technician. Bob Parsons (hereinafter "Parsons") has been the District Manager for Automotive for 12 years. Accordingly, Parsons was, during the relevant time period, the District Manager for Automotive. As the District Manager for Automotive, Parsons is responsible for, inter alia, customer service, business direction, profit, and sales for a geographical region which included the Altamonte Springs and East Colonial locations. Petitioner's second promotion came after Gill decided to select her for the position of Service Tech Coordinator, which was a management position. In deciding to select Petitioner for this position, Gill conferred with Parsons. The duties and responsibilities of the Service Tech Coordinator were to take care of scheduling or payroll in the back shop, customer flow and profitability, take care of equipment in the back shop and order supplies. During her employment as a Service Tech Coordinator at Respondent's Altamonte Springs Auto Center, Petitioner sought advancement to the position of assistant manager, which would have been an opportunity for promotion. Petitioner specifically inquired about the position with her supervisor, Gill, on at least two occasions. Each time Petitioner was told that the position had already been filled. When the assistant manager's position came open in early 1996 for a second time, a male applicant was given the position. Respondent routinely made use of an informal, word-of- mouth system regarding both notification of the availability of an assistant manager's position as well as the actual placement of applicants into the position. Respondent's auto center manager and the district manager for the auto center were aware and participated in the perpetuation of an informal, word-of- mouth system regarding notification of job openings and advance opportunities. There were two assistant manager positions that came open during the time Petitioner was employed at the Altamonte Springs location. The first position was given to J. R. Bunch. Gill spoke with Petitioner about the position, and Petitioner indicated that she was not interested and Petitioner recognized that Bunch was a well qualified candidate. The second position went to Dennis Lacey, who had been a salesman in the auto center for approximately 15 years, and was good with customers. As the Service Tech Coordinator, Petitioner had problems with the payroll in the back shop, as well as with some customer service issues where she would essentially become defensive with customer complaints. Petitioner scheduled more technicians to work at times when they were not needed to do business on a given day. In other words, the number of hours scheduled for the technicians was based on a certain percentage of the money collected, and Petitioner was always over the percentage. This had the effect of making the auto center less profitable. Parsons met with Gill and informed him that he had to get the payroll situation under control. As a result of Parson's mandate, Gill met with Petitioner in January 1997 to discuss the fact that she had again over-scheduled more technicians than were needed. On or about January 9, 1997, Gill called Petitioner into his office to discuss her job performance. When Gill began to address his concern, Petitioner became very defensive and started yelling and screaming. She walked out and went upstairs into the training room. Gill went into the training room and observed Petitioner using the telephone. He told Petitioner that he needed to see her after she finished with the telephone. She ignored him, and when she finished her telephone conversation, she walked downstairs and exited the building. A few minutes later, Petitioner came into Gill's office and said she had been upstairs talking to her psychiatrist and she had to leave work and go talk to her psychiatrist. Gill then informed Petitioner that that was fine, but he needed a note from the doctor indicating that she was fit to return to work. Petitioner then left the job. This was the first time Gill knew anything about Petitioner being under the care of a doctor for any reason. Petitioner never worked at the Altamonte Springs auto center again. Shortly after the meeting in January 1997, Petitioner went to Parsons and asked if she could transfer to a different auto center and take a demotion to the technician position. Petitioner told Parsons that she wanted a transfer and demotion because her doctor had told her that because of the pressure of the job of Service Tech Coordinator, it would be best for her. At that time, Petitioner did not hand Parsons a note or anything else that indicated she was suffering from anxiety, nor did she inform Parsons that she believed she was suffering from any harassment from Gill or anyone else. Parsons told Petitioner that he would check the stores in the area and see if there was a position available. Parsons then contacted Gill and asked him if he had a problem with Petitioner transferring. Gill did not object to the transfer, and Gill had no further involvement with Petitioner's employment. When Parsons approached Gill regarding Petitioner's request was the first time Gill had any knowledge that Petitioner wanted to transfer. Gill did not force Petitioner to seek a transfer. At no point during her employment with Respondent, did Petitioner complain to Gill that she felt she was being discriminated against or treated differently because of her gender. At no point during her employment with Respondent, did Petitioner ever complain to Gill that she felt she was being discriminated against or being treated differently because of an alleged disability. While Petitioner was under the supervision of Gill, he was never aware of any permanent disability that Petitioner may have had. While Petitioner was under the supervision of Gill, she never made a request for an accommodation from him because of an alleged disability. Petitioner never complained to Gill that she was being harassed. Petitioner never complained to Gill that she believed she was denied a promotion to the assistant manager's position because of her gender. Although Petitioner was aware of Respondent's toll- free telephone hotline number where employees could call and complain about their employment, Petitioner never called to complain about any treatment she received from Gill. Gill did not make disparaging comments about women or women in the workplace. It was not credible that Gill suggested to Petitioner that she should cut her hair, wear makeup, and wear Dockers pants in order to look more professional. Service Tech Coordinators, including Petitioner, wore uniforms. Gill's employment decisions with respect to Petitioner, were not based upon or influenced by her gender or any alleged disability. In regard to Petitioner's request for transfer and demotion, Parsons spoke with Bill Kleinschmidt, the Auto Center Manager for the Colonial location, to ask if he had room for a technician. Kleinschmidt informed Parsons that he had no problem with Petitioner's transferring to his location because she has a reputation as an excellent technician. Parsons then processed Petitioner's request for demotion and transfer to the Colonial location. Petitioner's pay remained the same following her voluntary demotion. Petitioner was not forced to take a demotion or transfer. Parsons never had any conversations with Petitioner regarding her seeking an assistant manager position. At no point during her employment with Respondent, did Petitioner complain to Parsons that she felt she was being denied promotion, discriminated against, or treated differently because of her gender or her alleged disability. Parsons was never aware of any alleged permanent disability Petitioner may have had or of any request for an accommodation by Petitioner because of an alleged disability, nor did Petitioner complain to Parsons that she was being harassed. After Petitioner transferred to the Colonial location, Kleinshmidt became concerned about her tardiness and absences. He had discussions with Petitioner regarding these issues, and she indicated that she would take care of them. However, the problem was not corrected, and Kleinschmidt issued Petitioner a written Memorandum of Deficiency regarding her problem with attendance. Petitioner assured him that she would correct the problem. Petitioner did not indicate that she was having any sort of difficulty or that her attendance problems were a result of any medication she was taking. Petitioner did not complain that she was being singled out because of her gender with respect to the Memorandum of Deficiency she received. Daniel Aponte, who was a technician at the Colonial location and also had attendance problems, was terminated because of his attendance problems. At the time Kleinschmidt issued Petitioner the Memorandum of Deficiency, he was not aware of any illness Petitioner may have suffered from, nor was he aware of any alleged disability Petitioner may have had. Petitioner did not indicate that she needed an accommodation with respect to her schedule because of any illness or disability. On or about September 23, 1997, Petitioner made a recommendation to a customer that Respondent needed to replace four tires because of an alignment that was not properly done. Kleinschmidt reviewed the situation and determined that only two tires should be replaced by Respondent because the other two were not affected by the alignment problem. Petitioner was offended that Kleinschmidt reversed a decision she had made. Kleinschmidt has had to correct other male technicians' recommendations to customers. He did not single out Petitioner by correcting her recommendation to the customer. Petitioner was never disciplined for this incident, and no employment decisions regarding Petitioner were made because of her gender. At this time during her employment with Respondent, Petitioner never complained to Kleinshmidt that she felt she was being discriminated against or treated differently because of her gender or because of an alleged disability. Kleinschmidt was not aware of any alleged disability Petitioner may have had and was not aware of any request for an accommodation by Petitioner because of any alleged disability. Petitioner never complained to Kleinschmidt that she was being harassed or that a fellow technician, Wes Shaner, referred to her as a "dumb ass bitch." Petitioner did not complain to Kleinschmidt that Wes Shaner was harassing her at work. Petitioner did not discuss her "disability" or that she was having "psychological" problems with her supervisors. Petitioner was not regarded by her supervisors as having a physical or mental impairment while employed by Respondent. Petitioner was not proven to be a disabled person, nor was she perceived to be disabled by her employer. The evidence failed to prove that Respondent's employment decisions toward Petitioner were based upon or influenced by her gender or alleged disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 26th day of April, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of April, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations Department of Management Services 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Donald C. Works, III, Esquire Anthony J. Hall, Esquire Jackson, Lewis, Schnitzler & Krupman 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Scott E. Siverson, Esquire 7485 Conroy-Windermere Road, Suite D Orlando, Florida 32835 Dana A. Baird, General Counsel Department of Management Services Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
