STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-247

)

JOSEPH B. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on May 20, 1983, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: None

By an Administrative Complaint filed on July 7, 1982, the Respondent was charged with the willful and deliberate disregard and violation of the Jacksonville building code when he allowed a person not his employee or under his supervision to perform electrical work under his permit, in violation of Section 950.111(a), City of Jacksonville Code of Ordinances. The complaint also charged that the Respondent had been disciplined by the City of Jacksonville, in violation of Sections 489.533(1)(i) and (n) Florida Statutes.

On March 10, 1983; the Petitioner served its Request for Admissions on the Respondent, in which the Respondent was requested to admit or deny each and every allegation contained in the Administrative Complaint. When the Respondent failed to respond to this Request for Admissions within the 30 day time period prescribed by Rule 1.370, Florida Rules of Civil Procedure, the Petitioner filed a Motion to Deem All Matters Contained in Administrative Complaint Admitted.

Although properly noticed of the time and place set for the final hearing, the Respondent failed to appear on May 20, 1983. The Respondent had been contacted by the Petitioner's counsel on May 19, 1983, to determine if he intended to be present at the formal hearing as scheduled. In reply the Respondent stated that "he was not planning on coming to the hearing, that he had a real estate transaction to close, and that he really didn't care what happened."

Inasmuch as the Respondent failed to appear at the scheduled final hearing, and failed to provide any excuse for his failure to respond to the Petitioner's Request for Admissions, the Motion to Deem All Matters Contained in Administrative Complaint Admitted, was granted pursuant to the provisions of Rule 1.370, Florida Rules of Civil Procedure and Florida Bar v. Drizin, 420 So.2d 878 (Fla. 1982). Thus, all allegations in the Administrative Complaint are deemed admitted, thereby establishing a prima facie case as required by Rules 22I-2.22 and 22I-2.23, Florida Administrative Code.

FINDINGS OF FACT

1. The Respondent, Joseph B. Smith is the holder of a registered electrical contractor's license, number ER 0007369, issued by the State of Florida.

   
   

2. During the month of May, 1981, the Respondent obtained an electrical permit for work on apartments located at the corner of Stockton and Forbes Streets, in Jacksonville, Florida. The work was contracted for by Ronnie D. Norvelle. Gary Moore performed the electrical work on the project. Neither of these men was employed by or under the supervision of the Respondent.

   
   

3. On March 3, 1982, the Construction Trades Qualifying Board for the City of Jacksonville, Florida, directed that a letter of reprimand be placed in the Respondent's permanent record.

   
   

4. The basis for the action taken by the Construction Trades Qualifying Board for the City of Jacksonville, Florida, was the violation of Section 950.111(a), Code of Ordinances of the City of Jacksonville.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1) , Florida Statutes.

   
   

6. The Electrical Contractors Licensing Board is empowered to revoke, suspend, or otherwise discipline a licensed electrical contractor who is found to have violated the following provisions of Section 489.533(1), Florida Statutes:

   
   

   1. Willfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipality or county thereof,

      (n) Disciplinary action by any municipality or county...

      
      

7. License revocation proceedings are penal in nature. The prosecuting agency is required to prove its charges by competent substantial evidence. Fla. Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1978); Brewer v. Insurance Commissioner and Treasurer, 392 So.2d 593 (Fla. 1st DCA 1981); City of Lake Wales v. Public Employees Relations Commission, 402 So.2d 1224 (Fla. 2d DCA 1981)

   
   

8. By the failure of the Respondent to respond to the Request for Admissions served by the Petitioner, and by the Hearing Officer's order granting the Petitioner's Motion to Deem all Matters Alleged in the Administrative

Complaint Admitted, the Petitioner has carried its burden of proof to establish the facts alleged in its complaint. The Respondent has thus violated Section 950.111(a), Code of Ordinances of the City of Jacksonville, and Sections 489.533(1)(i) and (n), Florida Statutes, as alleged.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number ER 0007369 held by the Respondent, Joseph

B. Smith, be revoked.

THIS ORDER ENTERED this 28th day of June, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Mr. Joseph B. Smith 6335 Park Street

Jacksonville, Florida 32205

Allen R. Smith, Jr., Executive Director Electrical Contractors Licensing Board

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000247

Orders for Case No: 83-000247