Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Mar. 30, 1977
Summary: Petitioner met all rule and statutory qualifications to sit for licensing exam.
76-1600.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
P. JERGUSON III, )
)
Petitioner, )
)
vs. ) CASE NO. 76-1600
) FLORIDA ELECTRICAL CONTRACTORS' ) LICENSING BOARD, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K.N. Ayers, held a public hearing in the above styled case on December 25, 1976 at Coral Gables, Florida.
APPEARANCES
For Petitioner: Michael Burke, Esquire
1700 San Souci Boulevard North Miami, Florida 33138
For Respondent: Ronald C. LaFace, Esquire
Post Office Box 1752 Tallahassee, Florida 32302
By Petition filed August 16, 1976 A. P. Jerguson III seeks administrative review of the Florida Electrical Contractors' Licensing Board's denial of his application to take the examination as qualifying agent of Jerguson Electric, Inc., the applicant for certification. At the hearing A. P. Jerguson testified on behalf of the applicant, the Executive Director of the Board testified on behalf of the Board, and one exhibit was admitted into evidence.
FINDINGS OF FACT
A.P. Jerguson III is the sole shareholder of Jerguson Electric, Inc., applicant herein, and is the qualifying agent for the applicant. He has been a master electrician in Dade County since 1972 and formed his own electrical company in October, 1972.
Prior to obtaining his master's license he was employed by L & M Electric Company and Lund Electric Company. While working for the latter contractor he was electrical foreman on the construction of a Holiday Inn at 79th Street Causeway in Miami.
Since forming his own business Jerguson has performed all types of electrical work from equipment installation to electrical wiring. After forming Jerguson Electric he made little or no money the first two years. During the
past two years the company made approximately $4,000 net profit each year after paying to the sole shareholder some $18,000 annual salary.
In 1975 the applicant did approximately $66,000 in gross sales. The credit information submitted on both Jerguson and the applicant contains no adverse comments and shows both Jerguson and Jerguson Electric to pay bills promptly, have no judgments against them and to be currently solvent.
Representative jobs performed by applicant are contained in Exhibit 1. These show routine wiring jobs, commercial and residential electrical work, and freezer and air-conditioning installations. These jobs varied between $500 and
$8,000 in price and totaled some $60,000 over a three year period. However, as seen from the financial statement for 1975, where the total work performed amounted to some $66,000 these were representative jobs over the three year period and not all jobs performed during this three year period as the form on which they were submitted seems to indicate.
At the hearing Respondent stipulated that the qualifying agents' qualifications were not in question and that the agent was denied the right to take the examination because the applicant did not show enough major jobs to demonstrate its qualification and business experience in handling large jobs.
The Executive Director of the Board further testified that upon this basis the Board would deny certification of any new business organization, regardless of the expertise of its qualifying agent or agents and the financial status of the organization, simply because the new business could not show a sufficient number of jobs completed. Apparently if the qualifying agent had previously been certified by the board a new business could be certified pursuant to the provisions of Rule 21GG-2.01(2) F.A.C.
CONCLUSIONS OF LAW
Section 468.184 F.S. provides the basic requirements for certification, and subsections (3) and (4) provide:
"(3) Following receipt of the fee and application, the board shall investigate the financial responsibility and credit and business reputation of the applicant, qualifying agent, as well as the education
and experience of the applicant's qualifying agent. Within 30 days from the date of the examination, the board shall inform the applicant in writing whether or not its qualifying agent has qualified and, if
the applicant's qualifying agent has qualified, that it is ready to issue a certificate of competency subject to compliance with the requirements of subsection (4).
(4) As a prerequisite to the issuance
of a certificate, the board shall require' the applicant to submit satisfactory evidence that it has obtained public liability and property damage insurance in an amount to be determined by the board.
Thereupon, the certificate shall be issued
forthwith; however, this subsection shall not apply to inactive certificates."
Other requirements for certification are contained in the regulation promulgated in Chapter 21GG-2 F.A.C. Rule 21GG-2.01 F.A.C. provides that the application shall be accompanied by the following:
"(a) A complete list of contracts, if any, by the business (sic) organization under way at the time of filing, along with a representative list of contracts completed
in the three (3) years immediately preceding the date of filing. The list shall include the description of each job, the dollar value, location, owner, architect and/or engineer, general contractor, and such
other information as the Board may require to enable a complete and thorough investigation to be conducted.
A statement, signed and sealed by an officer of a bonding company, licensed to do business in Florida, certifying the individual job limit and the maximum amount for which the bonding company would furnish performance and payment bonds for the applicant. If the applicant is unable to comply with this requirement, it shall notify the Board of the circumstances of its inability and furnish such other data
as the Board may require in lieu thereof.
A comprehensive financial statement prepared by a certified public accountant. The statement shall not be over one (1) year old, and if it is over ninety (90) days old, it shall be accompanied by an affidavit
from the certified public accountant stating that no material change has occurred since its preparation and that it substantially represents the current financial condition of the firm.
All applicants must show that their proposed qualifying agent has three (3) years proven experience in the trade as
an electrical contractor or in a responsible management position with an electrical contractor."
Section 21GG-2.02 F.A.C. provides for the processing of these applications as follows:
"Applications shall be referred to the Application Committee, who shall determine the qualification of the applicant's qualifying agent to sit for the examination and certification upon passage thereof by the Florida Electrical Contractors Licensing Board, and further, to determine the
applicant's qualifications for licensure. The Application Committee shall prepare a list of all qualified applicants and their proposed qualifying agents and present same to the Board. Upon presentation of a list of all qualified applicants and their proposed qualifying agents, the Board, by majority vote, shall then approve or disapprove these submissions. Approval by a majority of the Board of the applicant and its proposed qualifying agent shall be necessary in order for a proposed qualifying agent to sit for an examinations for certification."
Here the applicant has complied with all the requirements noted above. According to the regulations above quoted the Application Committee determines the qualifications of the applicant's qualifying agent and submits these to the Beard. With respect to the applicant the above rules provide that the Application Committee determines those applicants who are qualified and submits a list of all qualified applicants and their proposed qualifying agents to the Board who then decides whether or not the qualifying agent has the necessary experience to properly handle the business of the organization when certified. Since no issue was raised at the hearing with respect to the qualifying agent's qualifications and the Board's witness testified that A.P. Jerguson was fully qualified the only issue remaining is whether or not the applicant met the statutory and regulatory qualifications.
Section 468.104(4) F.S. above quoted provided the Board with plenary power to adequately protect the public against misuse of the certificate by the applicant.
From the foregoing it is concluded that in denying the qualifying agent of Petitioner the opportunity to take the examination the Board failed to follow either the statute or regulations above quoted. It is further concluded that the applicant meets all of the requirements of the statute and of the regulations issued pursuant thereto to have its qualifying agent sit for the examination. It is therefore,
RECOMMENDED that A. P. Jerguson III be approved as qualified to sit for the examination for certification pursuant to Section 464.184 F.S. on the date next held.
DONE, and ENTERED this 13th day of January, 1977, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
COPIES FURNISHED:
Michael Burke, Esquire 1700 San Souci Boulevard North Miami, Florida 33138
Ronald C. LaFace, Esquire
P.O. Box 1752
Tallahassee, Florida 32302
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION DIVISION OF OCCUPATIONS
P. JERGUSON, III Petitioner,
vs. CASE NO. 76-1600
FLORIDA ELECTRICAL CONTRACTORS' LICENSING BOARD,
Respondent.
/
FINAL ORDER
This matter came to be considered by the Florida Electrical Contractors' Licensing Board on March 25, 1977, at the Board's public meeting in St.
Petersburg, Florida, upon proper notice, and the Board having considered the Recommended Order issued in this matter by K. N. Ayers, Hearing Officer, under date of January 13, 1977, and further having considered the Exceptions to the Recommended Order filed by Special Counsel for the Respondent herein, (and further having considered the argument of Petitioner [or Petitioner's counsel]), it is hereby ORDERED and ADJUDGED that:
FINDINGS OF FACT
The findings of fact contained in the Recommended Order under date of January 13, 1977, and which is attached hereto are adopted by the Board and incorporated herein as the findings of fact of the Board.
CONCLUSIONS OF LAW
The conclusions of law contained in the Recommended Order under date of January 13, 1977, and which is attached hereto, are hereby modified and rejected in part; and the Exceptions to the Recommended Order filed by Special Counsel to
the Respondent under date of January 20, 1977, and which are attached hereto are adopted by the Board herein, and the Board does hereby conclude that:
The purpose and intent of Part VII of Chapter 468, F.S., is embodied within 468.180, F.S., which provides that:
It is hereby declared to the public policy of the state that in order to safeguard the life, health, property, and public welfare of its citizens, the business of electrical contracting is a matter affecting the public interest, and any person desiring to obtain a certificate to engage in the business as
herein defined on a statewide basis shall be required to establish his competency and qualifications to be certified as herein provided. (emphasis supplied)
Section 468.184, F.S., provides the basic requirements for certification, and subsections (3) and (4) provide:
Following receipt of the fee and application, the board shall investigate the financial responsibility and credit and business reputation of the applicant, qualifying agent, as well as the education
and experience of the applicant's qualifying agent. Within 30 days from the date of the examination, the board shall inform the applicant in writing whether or not its qualifying agent has qualified and, if
the applicant's qualifying agent has qualified, that it is ready to issue a certificate of competency subject to compliance with the requirements of subsection (4).
As a prerequisite to the issuance of a certificate, the board shall require the applicant to submit satisfactory evidence that it has obtained public liability and, property damage insurance
in an amount to be determined by the board. Thereupon, the certificate shall be issued forthwith; however, this subsection shall not apply to inactive certificate.
Additional requirements for certification are found in the regulations promulgated by the Board in Chapter 21GG-2, F.A.C., Rule 21GG-2.01 F.A.C., provides that the application shall be accompanied by:
A complete list of contracts, if any, by the business (sic) organization under way at the time of filing, along with a representative list of contracts
completed in the three (3) years immediately
preceding the date of filing. The list shall include the description of each job, the dollar value, location, owner, architect and/or engineer, general contractor, and such other information as the Board may require to enable a complete and thorough investigation to be conducted.
A statement, signed and sealed by
an officer of a bonding company, licensed to do business in Florida, certifying the individual job limit and the maximum amount for which the bonding company would furnish performance and payment bonds for the applicant. If the applicant is unable to comply with this requirement, it shall notify the Board of the circumstances of its inability and furnish such other data as the Board a require In lieu thereof.
A comprehensive financial statement prepared by a certified public accountant. The statement shall not be over one (1) year old, and if it is over ninety (90) days old, it shall be accompanied by an affidavit from the certified public accountant stating that no material change has occurred since its preparation and that it substantially represents the current financial condition of the firm.
All applicants must show that their proposed qualifying agent has three (3) years proven experience in the trade as an electrical contractor or in a responsible management position with an electrical contractor.
Section 21GG-2.02, F.A.C., provides for the processing of these applications as follows:
Applications shall be referred to the Application Committee, who shall determine the qualification of the applicant's qualifying agent to sit for the examination and certification upon passage thereof by the Florida Electrical Contractors' Licensing Board, and further, to determine the applicant's qualifications for licensure.
The Application Committee shall prepare a list of all qualified applicants and their proposed qualifying agents and present same to the Board.
Upon presentation of a list of all qualified applicants and their proposed qualifying agents, the Board, by majority vote, shall then approve or disapprove these submissions. Approval by a majority of the Board of the applicant and its proposed qualifying agent shall be necessary in order for a proposed qualifying agent to sit for an examination for certification.
Part VII of Chapter 468, F.S., operates as a preemption of local authority with regard to electrical contractors' qualifications and therefore, certification under this part notices and represents to the various local authorities that the particular electrical contractor is financially stable and well qualified enough to operate on a statewide, unlimited basis without regard to local examination and licensing requirements. To be licensed statewide in such a fashion and so certified, the applicant is held to a much higher standard than a contractor who is qualified licensed to operate only in a given area and field of endeavor. The foregoing legislative intent is embodied within Part VII of Chapter 468, F.S., wherein 468.184(6), F.S., provides that:
When a Florida licensed electrical contractor desires to engage in contracting in any area of the state, as a prerequisite therefor, it shall only be required to exhibit to the local building official, tax collector, or other authorized person in charge of the issuance of licenses and building or electrical permits in the area evidence of holding a current state certificate of competency, accompanied by the fee for the occupational license and permit required of other persons.
Additionally, subsections (5), (6), and (9) of 468.192, F.S., provide that:
Any official authorized to issue building or other related permits shall ascertain that the applicant contractor is certified or duly qualified according to
any local requirements in the area where the construction is to take place' before issuing the permit. The evidence shall consist only of the exhibition to him of current evidence of proper certification
or local qualification.
Municipalities or counties may continue to provide examinations for their territorial area if a certificate has not been issued by the Board.
(9) Notwithstanding any provisions to the contrary in s. 235.31 about
pre-qualification of bidders, any person
holding a certificate shall be deemed qualified to participate in any project contemplated by the section.
Nothing involved in the instant case has or will preclude the Petitioner from operating in that area of the state where he was locally licensed, nor will the Petitioner be precluded from meeting the local standards in other areas of the state where he desires to operate.
Pursuant to the provisions of Part VII of Chapter 468, F.S., and the regulations promulgated thereunder, a new qualifying agent and business applicant cannot be certified as competent to operate unlimitedly and on a statewide basis until they have demonstrated sufficient experience and financial stability to so operate because the standards established by part VII of chapter 468, F.S., are not merely minimal standards that must be met in order to operate as an electrical contractor, but represent standards of a higher degree of experience, financial stability, competency, and excellence that must he met in order to preempt the regulation of electrical contractors by the local authorities throughout the State of Florida, regardless of the level of said local standards.
Based upon the findings of fact as incorporated herein, and the conclusions of law, as set out above, the Board determines and so rules that the PETITIONER, A.P. Jerguson, III, is not permitted to sit for the examination for certification pursuant to 468.184, F.S., until such time as the Petitioner as qualifying agent, and the applicant, meet the standards of Part VII of Chapter 468, F.S., and the rules and regulations promulgated thereunder.
DONE and ENTERED this 25th day of March 1977.
JAMES R. WARD, CHAIRMAN
FLORIDA ELECTRICAL CONTRACTORS' LICENSING BOARD
COPIES FURNISHED:
Michael Burke, Esquire 1700 Sam Souci Boulevard North Miami, Florida 33138
Ronald C. LaFace, Esquire Post Office Box 1753 Tallahassee, Florida 32302
Docket for Case No: 76-001600
Orders for Case No: 76-001600
