STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUTHER E. COUNCIL, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1884

)

ELECTRICAL CONTRACTORS )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard before the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, on January 4, 1984, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Luther Eugene Council, Jr., pro se 1872 Mill Street

Post Office Box 2497 Tallahassee, Florida 32304

For Respondent: Susan Tully, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

BACKGROUND

These proceedings began on June 10, 1983 when Petitioner Luther E. Council, Jr. filed a request for a formal hearing on the denial of his application to take the examination for certification as an electrical contractor in the State of Florida. On June 14, 1983 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. That hearing was initially set for September 19, 1983 but at the request of the Respondent was continued until September 26, 1983.

At the time and place noticed for the final hearing Respondent and the Hearing Officer appeared but Petitioner, through inadvertence, did not. A Recommended Order of Default was entered on September 29, 1983 but in response to a showing of excusable neglect by Petitioner the Recommended Order of Default was set aside. The final hearing was reset for January 4, 1934.

At the final hearing Petitioner provided his own testimony and offered Exhibits 1, 2 and 3, which were received into evidence. Respondent offered Exhibit A, which was received into evidence. Subsequent to the final hearing

Respondent has filed a Proposed Recommended Order containing findings of fact. They have each been given careful consideration here. To the extent that the proposed findings are not reflected in this Order, they are rejected as either being not supported by the weight of credible admissible evidence, or as being irrelevant to the issues determined here. 1/

FINDINGS OF FACT

1. Petitioner Luther E. Council, Jr., who is now 32 years old, is no stranger to the business of contracting. His father, Luther E. Council, Sr., began instructing him in the trade when Petitioner was approximately 10 years old. Mr. Council, Sr. operates Council Brothers, Incorporated, a commercial plumbing, heating and air conditioning contracting firm.

   
   

2. From July 1969 until July 1973 Petitioner was employed as a plumber by Prescott Plumbing Company in Tallahassee, Florida. His duties included assembling and repairing pipes and fixtures for heating, wastewater, and drainage systems according to specifications and plumbing codes. In September 1973 Petitioner entered the United States Navy where he served as an aviation electrician. He attended numerous training schools including electrical, electronics, and avionics schools at the Naval Air Station in Memphis, Tennessee, and at the Naval Air Station at Cecil Field, Jacksonville, Florida. This instruction included over 1,500 hours of classroom time. After two years of service he was honorably discharged.

   
   

3. Upon his discharge from the Navy in 1975, Petitioner went to work for Litton Industries at their Ingalls Shipyard in Pascagoula, Mississippi. He began in the position of Maintenance Electrician B but was promoted to Journeyman in less than six months. After approximately one and a half years at Ingalls Petitioner was hired at Brown & Root Construction Company as a Journeyman Electrician on their electrical termination crew. In that position he was responsible for the termination of all electrical equipment in the steam power plant for Mississippi Power Company. He remained in that position until the plant was shut down. Petitioner then returned to Ingalls where he was a Maintenance Electrician on the automated equipment crew. He maintained and repaired equipment such as boilers, welding machines, x-ray machines, air compressors, bridge cranes, communications equipment, sheet metal shop equipment, and fire and security alarm systems. This period of employment was from July 8, 1976 until February 2, 1977.

   
   

4. Thereafter Petitioner was again employed by Brown & Root Construction Company, this time in Axis, Alabama. In his position as Work Leaderman Electrician (assistant foreman) he was responsible for the construction, installation, and termination of all electrical equipment for a particular utilities area at the Shell Chemical Plant. He worked on equipment such as boilers, air compressors, water treatment facilities, pump motors, hot oil furnaces instruments, monitoring and control panels, and incinerators with a crew of up to 18 men. Petitioner did not have a foreman but was directly responsible to the project superintendent.

   
   

5. From June 1978 until June 1979 Petitioner was employed as an electrician by Union Carbide in Theodore, Alabama. As the only electrician on duty at night, Mr. Council was responsible for the electrical maintenance of all machinery ranging from the power plant distribution system to overhead bridge cranes to small electronic devices. Included within his responsibilities were maintaining air conditioning systems, interior and exterior lighting systems,

   and repairing huge sandblasting equipment. Upon completion of his work for Union Carbide he returned home to Council Brothers, Inc.

   
   

6. Since his return to Council Brothers in June of 1979 Petitioner has had a variety of responsible duties. His functions can be placed in two categories: roving foreman and estimator. Council Brothers is a mechanical contractor with a gross profit of over 1.1 million dollars for the year 1983. Some of the firm's recent projects include installing heating, ventilation and air conditioning (HVAC) equipment at several local high schools; pressurizing the stairwells and elevator shafts in the State Capitol building, modification of HVAC systems at several state office buildings in Tallahassee, Florida, and renovation work at the State Hospital in Chattahoochee, Florida. As an estimator Petitioner supervises the project design and is responsible for the firm's mechanical contracting projects. On most of its projects Council Brothers is the general contractor for the mechanical work. It then subcontracts out the specific electrical work required. In his capacity as a roving foreman Respondent serves as a trouble shooter available to assist those projects which may encounter particular problems. He is then responsible for solving the problems through a redesign of the project, the use of alternative equipment, or some other means. Since August of 1981 however, Mr. Council has spent most of his time in the office estimating and bidding jobs.

   
   

7. On August 4, 1983 Petitioner became Vice-President of Council Brothers, Inc. The firm first registered as an electrical contractor in June 1983. Petitioner holds licenses as a certified building contractor, plumbing contractor, mechanical contractor and underground utilities contractor.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1983).

   
   

9. Section 489.511, Florida Statutes (1983) provides in part:

   
   

   1. Any person desiring to be licensed as a certified electrical contractor shall apply to the department in writing to take the certification examination.

      (3) The board shall investigate the financial responsibility and credit and business reputation of the applicant, as well as the education and experience as provided in s.489.521 of the applicant's qualifying agent.

      Section 489.521, Florida Statutes (1983) provides: (2)...the application shall also

      show that the proposed qualifying agent

      is legally qualified to act for the busi- ness organization in matters connected with its contracting business and con- cerning regulations by the board and that he has authority to supervise work under- taken by the business organization. The person must possess the required skill,

      knowledge, and experience, as evidenced by 3 years' proven experience in the trade or education equivalent thereto,.. (Emphasis added.)

      
      

10. Pursuant to its rule-making authority the Electrical Contractors' Licensing Board has promulgated Section 2IGG-5.03(1), Florida Administrative Code, which requires:

    
    

    1. All applicants must show that their proposed qualifying agent (in the case of a sole proprietorship the applicant himself) has three (3) years proven experience in the trade as an electrical contractor or in a responsible management position with an electrical contractor....

       (Emphasis added.)

       
       

11. For Council Brothers, Inc. to be certified as an electrical contractor its qualifying agent, that is Petitioner, must meet the standards of both Section 489.521, Florida Statutes and Section 2IGG-5.03, Florida Administrative Code. There is no question that Petitioner meets the statutory criterion. He possesses the required skill, knowledge and experience as evidence by three years proven experience in the trade. Since his training in the United States Navy over ten years ago, Petitioner has worked in the electrical trade.

    
    

12. Petitioner does not meet the criteria of the rule however. The rule requires not only that his experience be "in the trade" but it also requires that he either have been an electrical contractor himself for three years or that he have held a management position for such a contractor for that period of time. 2./ Prior to his return to Council Brothers Petitioner's experience has been as an electrician. He was not a contractor himself and he did not hold a responsible management position for any of his employers. He has held such a position with Council Brothers since June 1979 but unfortunately, Council Brothers did not became an electrical contractor until the summer of 1983. Mr. Council therefore does not meet all the standards of Section 2IGG-5.03(1), Florida Administrative Code. Allgood v. Department of Professional Regulation, Electrical Contractors Licensing Board, 4 FALR 2595-A (Florida Electrical Contractors Licensing Board, Final Order, September 1982).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Electrical Contractors Licensing Board enter a Final Order denying Petitioner permission to take the examination for licensure as a certified electrical contractor.

DONE and RECOMMENDED this 14th February, 1984, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1984.

ENDNOTE

1/ Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commission, 436

So.2d 383 (Fla. 5th DCA 1983).

2/ The restrictive construction placed on Section 489.521(2), Florida Statutes by Section 2IGG-5.03(1), Florida Administrative Code is not in issue here. But see, Department of Health and Rehabilitative Services v. Petty-Eifert, So. 2d, 6 FALR 41 (Fla. 1st DCA December 20, 1983); Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980).

COPIES FURNISHED:

Luther Eugene Council, Jr. 1872 Hill Street

Post Office Box 2497 Tallahassee, Florida 32304

Susan Tully, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Allen R. Smith, Jr.

Executive Director

Electrical Contractors Licensing Board

130 North Monroe Street Tallahassee, Florida 32301

Frederick Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-001884

Orders for Case No: 83-001884