STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. DENTICO, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1926

) FLORIDA ELECTRICAL CONTRACTORS ) LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Michael Pearce Dodson, held a public hearing in this case on December 19, 1979, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Philip J. Gouze, Esquire

Courthouse Square Building

200 North East 6th Street, Suite 507 Fort Lauderdale, Florida 33301

For Respondent: Patricia R. Gleason, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

These proceedings began on August 31, 1979, when James L. Dentico, the Petitioner, filed an Election of Rights form to object to the denial by the Respondent, Florida Electrical Contractors Licensing Board, of his application to be licensed as a certified electrical contractor. On September 17, 1979, the matter was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. Subsequently, the Respondent Board filed a Motion to Dismiss the Election of Rights form because it did not constitute a petition for formal proceedings under Chapter

1. , Florida Administrative Code. The Petitioner responded by filing a conforming Petition on October 8, 1979. The final hearing on the Petition was held on December 19, 1979

   
   

   The issues in this proceeding are: (1) Whether or not the Board timely denied Mr. Dentico's application within the 90 day time limit of Section 120.60(2), Florida Statutes (1978 Supp.), and if it did, whether or not the applicant has one and one half years experience "in the trade" of electrical contracting sufficient to meet the requirements of Section 468.185(2), Florida Statutes (1977).

   The Respondent Board presented three witnesses, Mr. Allen R. Smith, Jr., Executive Director of the Florida Electrical Contractors Licensing Board; Mr. Kenneth L. Dunworth, member of the Florida Electrical Contractors Licensing Board; and Mr. Dentico as an adverse witness. The Board offered Respondent's exhibits No. 1 and 2, which were received into evidence. Mr. Dentico offered Petitioner's exhibit Composite A, which was received into evidence. He was his only witness.

   
   

   The parties stipulated that the only reason why Mr. Dentico was not considered qualified to take the Electrical Contractors examination was the Board's determination that he did not have the one and one half years experience "in the trade" as required by Section 468.185(2), Florida Statutes (1977).

   
   

   At the start of the hearing, counsel for the Petitioner moved for leave to amend his Petition to include a prayer for relief requesting the Board to return

   $50.00 of his application fee in the event his application is finally denied. The Motion was granted subject to there being in effect Board rules which allow such a refund. Also considered at the commencement of the hearing was the Board's Motion to Strike those portions of the Petition relating to an award of attorneys' fees by the Hearing Officer. That Motion was granted as neither the Board nor the Hearing Officer has the authority to award attorneys' fees.

   Sections 120.69(7) and 120.57(1)(b)9., Florida Statutes (1979), are the only provisions in the Administrative Procedures Act relating to the award of attorneys' fees and these sections speak only to awards by a court. There are no provisions in either the general statute on the powers of the Department of Professional Regulation 1/ ; or in the Florida Electrical Contractors Licensing Board statutes 2/ which allow the award of attorneys fees by either the Board or the Hearing Officer.

   
   

   FINDINGS OF FACT

   
   

   1. By an application dated March 27, 1979, and received by the Board on March 30, 1979, Petitioner, James L. Dentico, applied to the Florida Electrical Contractors' Licensing Board for a license as a certified electrical contractor.

      
      

   2. The Board has a committee on applications which reviewed Mr. Dentico's application. The committee determined that his application did not evidence sufficient experience in the trade. That determination prompted a letter written May 8, 1979, from Mr. Allen R. Smith, Jr., the Board's Executive Director, to Mr. Dentico. The letter states, in pertinent part, that:

      
      

      Your application failed to evidence to the Board that you had six (6) years' comprehensive experience training as required by 468.185(2). If you can evidence six (6) years as reflected in 468.185(2) in the trade as an electrical engineer, this evidence will be brought before the board.

      
      

   3. By letter dated May 15, 1979, Mr. Dentico responded through counsel. He contended that his application did evidence sufficient experience since, in his opinion, he had more than the minimum one and one half years of experience in the trade as required by Section 468.185(2), Florida Statutes. Mr. Dentico's attorney reiterated his request originally made on March 27, 1979, with the application that all future communications relating to the application be made directly to him, Philip J. Gouze, Esquire.

   4. Mr. Dentico's application was then returned to the Board for further consideration. That review was made at the Board's June 7, 1979, meeting in Tampa.

      
      

   5. As the result of communications between Mr. Smith's office and Mr. Gouze, Mr. Dentico was under the impression that he could take the electrical contractors' examination scheduled for June 8, 1979, in Tampa.

      
      

   6. To obtain his admission ticket for the written examination, Mr. Dentico appeared at the Board's June 7, 1979, meeting. Upon entering the room, he was questioned by Board members about his contracting experience in North Carolina and Florida. At the time Petitioner appeared, the Board had before it a seconded motion to accept his application.

      
      

   7. After the initial questioning, Mr. Borrell stated:

      
      

      Mr. Borrell: O.K., a motion has been made and it has been seconded that we accept this application.

      
      

      Mr. Lenhart: I think we need a little more evidence and based on this discussion, I will have to withdraw my motion.

      
      

      Mr. Isaac (the Chairman): I withdraw my second.

      
      

      Mr. Borrell: Motion made to withdraw it.

      
      

      Mr. Lenhart: And I base it on failure to evidence sufficient experience as an unlimited managing electrical contractor.

      
      

      Mr. Sommerkamp: I second.

      
      

      Mr. Borrell: Is there any discussion on this motion?

      
      

      Mr. Borrell: Let's go back to square one.

      
      

      Mr. Lenhart: Based on what he has said, I think the application is misleading and I would recommend that he reapply.

      
      

      Mr. Isaac: I second. (Vote was unanimous.)

      
      

   8. Mr. Dentico persisted in urging his qualifications on the Board. He was further questioned about his experience. After the additional questioning, Mr. Morgan said:

      
      

      Mr. Morgan: What is the motion?

      
      

      Mr. Borrell: Reject. The Chairman called for a vote and it was unanimous.

      
      

      Mr. Borrell: The Board does not see fit at this time and if you submit more data, we will

      be glad to review; but based on the findings we have here the information our decision has to stay and you will be notified of the right to appeal.

      
      

   9. Mr. Dentico's counsel was not present at the Board meeting and the record does not reflect that he was notified of the Board's action until the denial letter of August 13, 1979.

   10. On that date, Mr. Smith wrote to Mr. Dentico to state: The Florida Electrical Contractors' Licensing

       Board has reviewed your application for

       examination to be licensed as an electrical contractor, authorized to provide unlimited services, throughout the State. The Board has found that you [sic] application lacks sufficient evidence to qualify you to sit for the examination for the following reason:

       
       

       Your application failed to evidence to the Board at its June 7, 1979, meeting the necessary experience in the field as an electrical contractor authorized to provide unlimited services. Please refer to Sections

       468.180 and 468.185, Florida Statutes, and Rule 21GG-2.01(1).

       
       

       The Florida Administrative Procedures Act entitles you to request a hearing on this matter should you choose to do so. Attached you will find an "Election of Rights" form which fully explains the procedures you may follow in requesting a hearing.

       
       

   11. The Board has not controverted any of the information in Petitioner's application. Mr. Dentico has a Bachelor of Science in electrical engineering from the Indiana Institute of Technology. He has a Masters degree in electrical engineering from the Georgia Institute of Technology. Between 1969 and 1973, he was an advanced design engineer at Grumman Aerospace Corporation. His responsibilities included research design and development of aircraft and satellite control systems, designing electrical hookup equipment for laboratory experiments and preparing cost estimates and technical writing for bids on government contracts. At Grumman, his time was divided equally into three functions: research, development and engineering. As part of his development responsibility, he was in charge of the construction of apparatus display and testing tables which were a mock-up of the hydraulic and electrical environment in which a prototype component would later operate. Mr. Dentico supervised the electricians who constructed the wiring, ran the conduits, etc., for those apparatuses.

       
       

   12. Subsequently, Mr. Dentico operated his own business, N. K. Investments of North Carolina, from January, 1975, to February, 1977. He designed and cost estimated an electrical power distribution system for a 320 boat slip marina and for the service building of that marina in New Bern, North Carolina. He also prepared an electrical cost estimate for a four-story office building there.

   13. Mr. Dentico also had some experience in doing the general electrical work on a two-story, nine-unit apartment complex building in Miami Shores, during 1977. Under the supervision of Gurney Electric Corporation, the project electrical contractor, he put in conduit, pulled wires and installed appliances.

       
       

   14. The functions of an electrical contractor are to order the necessary equipment for a given project, to supervise the contractor's employees in constructing the job according to the plans and specifications, to coordinate the work of the contractor's employees with the needs of the general contractor and in accordance with the directions of the project electrical engineer. There are times when a project does not have an electrical engineer and in that case, the design work is expected to be performed by the electrical contractor.

       
       

   15. Careful consideration has been given to each of the proposed findings of fact submitted by the parties. To the extent that they are not contained in this Order they are rejected as being either not supported by competent evidence or as irrelevant and immaterial to the issues for determination here.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties and over the subject matter of these proceedings, Sections 120.57(1) and 120.60, Florida Statutes (1979).

       
       

   17. At the time of Mr. Dentico's application for certification as an electrical contractor, the standards and procedure for licensure were set out in Chapter 468, Part VII, Florida Statutes (1977).

       
       

   18. According to Section 468.185, Florida Statutes (1977), the applicant for a sole proprietorship license as applied for by Mr. Dentico, must

       
       

       . . .possess the required skill, knowledge and experience, as evidenced by three (3) years proven experience in the trade or education equivalent thereto, or a combination thereof, but not more than one half of such experience may be educational equivalent,. . .

       
       

   19. Mr. Dentico, by virtue of his masters degree in electrical engineering from the Georgia Institute of Technology meets half of the three year "experience in the trade" criterion.

       
       

   20. Section 468.181(5), Florida Statutes (1977), provides the following definition:

       
       

       "Florida licensed electrical contractor" or "contractor" means one whose services are unlimited in the electrical trade field and who has the experience, knowledge and skill to install, repair, alter, add to or design when not prohibited by law, electrical wiring, fixtures, appliances apparatus, raceways, conduit or any part thereof which generates, transmits, transforms, utilizes electrical energy in any form for light, heat, power or communication including the electrical installations and systems within plants and

       substations, all in such manner as to comply with all the plans, specifications, codes, laws and regulations applicable.

       
       

   21. The Board requires by rule that

       
       

       All applicants must show that their proposed qualifying agent [in the case of a sole proprietorship the applicant himself] has three years proven experience in the trade as an electrical contractor or in a responsible management position with an electrical contractor. (Emphasis added.)

       
       

       Section 21GG-01, Florida Administrative Code.

       
       

   22. Mr. Dentico has not provided evidence that he has been an electrical contractor or he has been in a responsible management position with an electrical contractor for one and one half years. He, therefore, has not met the experience requirement of Section 468.185(2), Florida Statutes (1977), as explicated by the Board's rule.

       
       

   23. When a license application is made, the licensing agency has 90 days in which to deny the application. If the denial is not timely, the license is deemed granted, or if an examination is a prerequisite to licensure, the applicant must be admitted to the examination. Section 120.60(2), Florida Statutes, (1978 Supp.).

       
       

   24. The Board did not timely deny Mr. Dentico's application which was received on March 30, 1979. The letter of denial was not sent until August 13, 1979, 136 days later. The Board seeks to avoid tardy denial of the application by arguing that the vote taken at the Board's meeting on June 7, 1979, constituted compliance with the 90 day deadline. That evidence is rejected.

       
       

   25. While there may be situations when an effective denial could be orally made at a licensing Board meeting, that was not the case here. Section 120.60(2), Florida Statutes,(1978 Supp.), requires that "each agency upon issuing or denying a license shall state with particularity the grounds or basis for the issuance or denial of same, except where issuance is ministerial act (emphasis added)." The Board's action at its June 7, 1979, meeting does not constitute an adequate denial as the requisite particularity is absent.

       
       

   26. The motion made by Mr. Lenhart on which the Board relies as its denial could well be interpreted as a request for additional information. In sum, he said, "I think we need a little more evidence and based on this discussion, I will have to withdraw my motion [to accept the application] and I base it on failure to evidence sufficient experience as an unlimited managing electrical contractor. Based on what he has said I think the application is misleading and I would recommend that he reapply." After the motion was voted on, the Board continued its dialogue with Mr. Dentico concerning his experience.

       
       

   27. While it is true that at the conclusions of the Board meeting, Mr. Dentico reasonably should have known that he would not be admitted to the June 8, 1979, examination because the Board did not give him an admission ticket, the denial of his license application was not conclusively made until the Board's letter of August 13, 1979. This is particularly true in light of the continued requests of Dentico's counsel to receive all communications regarding the

       application. From the record here, the letter of August 13, 1979, was his first notice of the denial.

       
       

   28. Mr. Dentico is entitled to be admitted to the next examination for certification as an electrical contractor and if he makes a passing score, he is entitled to be granted certification as an electrical contractor in Florida.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the application of James L. Dentico for certification as an electrical contractor be granted subject only to successful completion of an objective written examination about Mr. Dentico's fitness for a certificate as required by Section 468.184(2), Florida Statutes (1977).

That $50.00 of Petitioner's application fee be returned to him if Section 21GG-2.09, Florida Administrative Code, is still in effect.

DONE and ENTERED this 30th day of January, 1980, in Tallahassee, Florida.

MICHAEL P. DODSON

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/ Chapter 455, Florida Statutes (1979).

2/ Sections 489.501 et seq., Florida Statutes (1979).

3/ He can acquire that experience by being licensed by the local county commission where he intends to contract and by then registering with the Board. Section 468.1831, Florida Statutes (1977), and Section 489.513, Florida Statutes (1979).

COPIES FURNISHED:

Philip J. Gouze, Esquire Courthouse Square Building Suite 507

200 North East 6th Street

Fort Lauderdale, Florida 33301

Patricia R. Gleason, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION

JAMES L. DENTICO,

Petitioner,

vs. CASE NO. 79-1926

FLORIDA ELECTRICAL CONTRACTORS LICENSING BOARD,

Respondent.

/

FINAL ORDER

This matter came before Nancy Kelley Wittenberg, Secretary of the Department of Professional Regulation, on May 5, 1980, for consideration of the Recommended Order entered by Michael Pearce Dodson, Hearing Officer, Division of Administrative Hearings. A copy of the Recommended Order is attached hereto.

The Secretary having reviewed the entire record, including all pleadings, exhibits admitted into evidence, the transcript of the hearing proceedings, the Findings of Fact, Conclusions of Law and Recommended Order of the Hearing Officer finds as follows:

1. The findings of fact contained in the Recommended Order are adopted by the Department as its findings of fact and are incorporated herein as though fully set forth;

   
   

2. The conclusions of law contained in the Recommended Order are adopted by the Department as its conclusions and are incorporated herein as though fully set forth except that no part of petitioner's application fee shall be returned; and

   
   

3. Upon consideration, the exceptions filed by Respondent to the extent they are inconsistent with this Order are specifically rejected as being irrelevant or not supported by the evidence.

Based upon the foregoing findings of fact and conclusions of law, the Department adopts the Recommended Order of the Hearing Officer except for refunding a part of the application fee and accordingly, it is ORDERED,

1. The application of Petitioner, James L. Dentico, for certification as an electrical contractor is granted subject only to successful completion of the state certification examination.

DONE and ORDERED this 5 day of May, 1980, in Tallahassee, Florida.

Nancy Kelley Wittenberg Secretary

Department of Professional Regulation

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was forwarded by certified mail this day of May, 1980, to: Philip J. Gouze, Esquire, Courthouse Square Building, Suite 507, 200 North East 6th Street, Fort Lauderdale, Florida 33301; Michael Pearce Dodson, Hearing Officer, Division of Administrative Hearings, Room 530, Carlton Building, Tallahassee, Florida 32304; Patricia Gleason, Assistant Attorney General, Office of the Attorney General, The Capitol, Tallahassee, Florida 32301 and to Allen (Rex) Smith, Executive Director, Electrical Contractor's Licensing Board, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301.

FHW/kf

Frederick H. Wilsen Staff Attorney

Docket for Case No: 79-001926

Orders for Case No: 79-001926