Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Jun. 12, 1984
Summary: Contractor allowed his license to be used illegally.
83-2716STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA ELECTRICAL ) CONTRACTORS LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2716
)
BENJAMIN R. NEWBOLD, JR., )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA ELECTRICAL ) CONTRACTORS LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2717
)
EDWARD I. HAMMOND, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above cases before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on September 30, 1983 in Ocala, Florida.
APPEARANCES
For Petitioner: Charles F. Tunnicliff, Esquire
139 North Monroe Street Tallahassee, Florida 32391
For Respondent: Benjamin R. Newbold, Jr., pro se
(Case No. 83-2716) Route 3, Box 839 Silver Springs, Florida 32688
For Respondent: Edward I. Hammond, pro se
(Case No. 83-2717) 2529 Northeast 6 Street
Ocala, Florida 32679
BACKGROUND
By an administrative complaint filed on August 4, 1983, petitioner, Department of Professional Regulation, Florida Electrical Contractors Licensing Board, has charged that respondent, Benjamin R. Newbold, Jr., a registered electrical contractor, had violated various provisions of Chapter 489, Florida
Statutes. In brief, it is alleged that Newbold (1) aided and abetted another person in evading the provisions of Chapter 489 while performing electrical work on a job in Marion County, Florida, in April, 1983, and (2) knowingly combined or conspired with another person by allowing his certificate to be used by another uncertified person with intent to evade the provisions of Chapter 489.
This case has been assigned Case No. 83-2716. In a separate administrative complaint also filed on August 4, 1903, petitioner has alleged that respondent, Edward I. Hammond, a registered electrical contractor, had violated certain provisions within Chapter 489 while working with Newbold on the same job in Marion County in April, 1983. Specifically, it is alleged that Newbold (1) engaged in electrical contracting outside the scope of his registration, and (2) willfully and deliberately disregarded and violated the building code of Marion County. This case has been assigned Case No. 83-2717.
Respondents disputed the allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matters were referred by petitioner to the Division of Administrative Hearings on August 24, 1983, with a request that a Hearing Officer be assigned to conduct a bearing. By notice of hearing dated September 16, 1983, both cases were set for a consolidated hearing on September 30, 1983, in Ocala, Florida. The consolidation of the cases stemmed from the fact that the same transaction was involved in both cases.
At the final hearing, petitioner presented the testimony of Trusten Drake, a certified general contractor, and Edward Garr, City of Ocala code enforcement officer, and offered petitioner's Exhibits 1-9; all were received in evidence. Respondents Hammond and Newbold testified on their own behalf.
The transcript of hearing was filed on October 17, 1983. Neither party filed proposed findings of fact and conclusions of law.
The issue herein is whether respondents should be disciplined for the alleged violations set forth in the administrative complaints.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant thereto, respondent, Benjamin R. Newbold, Jr., held registered electrical contractor license number ER 0001170 issued by petitioner, Department of Professional Regulation, Florida Electrical Contractors Licensing Board. He was granted registration in September, 1974 after evidencing competency in Metropolitan Dade County. His present address is Route 3, Box 839, Silver Springs, Florida. He also holds a registered electrical contractor's license with the City of Ocala and, as such, is authorized to pull permits and perform electrical work within that city.
At all times relevant thereto, respondent, Edward I. Hammond, held registered electrical contractor license number ER 0003860 issued by petitioner. Hammond was granted registration in September, 1975 after evidencing competency in Marion County, Florida. However, Hammond is not qualified to perform electrical work within the City of Ocala since he had not obtained the required certificate of competency. His present address is 2529 Northeast 6th Street, Ocala, Florida.
Section 2.63 of the Ocala City Code provides in part that "no person shall engage in said businesses or occupations (of a contractor) in the city until such person shall have first stood a satisfactory examination before the examining board as to his qualifications and fitness to engage in such occupation or business."
On or about March 22, 1983, Drake Contracting Company, a construction firm in Oca1a, Florida, entered into a contract with H & H Electrical Contractor Company (H & H), an electrical firm in Silver Springs, Florida, wherein H & H would perform the electrical work on a construction project for Caviness Buick, 2060 Southwest College Road, Ocala, Florida. The agreed-upon price was $42,113. Hammond was the owner of H & H.
In order to perform the work required in the above contract, it was necessary that the person doing the work be certified by the City of Ocala.
On April 7, 1983, Newbold filed an application for an electrical permit with the City of Ocala to perform the work on the Caviness Buick project. The application did not reflect that H & H was associated in any respect with the job. Thereafter, on April 13, the City code enforcement officer learned through a telephonic complaint that H & H had no certificate of competency. On April 19, the officer contacted Hammond on the job site to advise him that H & H was in violation of the City code and that he could not perform the job.
After being told their endeavors were illegal, respondents entered into a written "joint venture" on April 21, 1983, and agreed to work jointly on the Caviness Buick project and split the profits, if any. Newbold was to be in charge of supervising the employees on the job.
Newbold had qualified for a certificate of competency with the City in 1978. Using that certificate, he filed an application for contractor's certificate with the City on May 4, 1983 seeking to qualify H & H. This application was apparently granted by the City shortly thereafter. From that point on,
H & H was qualified to contract electrical work within the City.
Respondents contended that an informal agreement between the two existed prior to obtaining the contract to do the job and that it was formalized in writing after the City made its complaint.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
In the two administrative complaints, it is alleged by petitioners (a) that Newbold aided and abetted Hammond in evading the requirements of Chapter
489 in violation of Subsection 489.533(1)(k), and knowingly combined or conspired with Hammond in allowing his certificate to be used by Hammond in evading the law in violation of Subsection 489.533(1)(k); and (b) that Hammond engaged in electrical contracting outside the scope of his registration in violation of Subsection 489.513(4), and willfully or deliberately violated the building code of the City of Ocala in violation of Subsection 489.533(1)(i).
The evidence reflects that respondents are indeed guilty of each of the foregoing allegations, except that portion of the complaint which alleges
Hammond willfully and deliberately violated the City code. The latter violation was not substantiated, particularly in view of respondent's uncontroverted testimony that the job was to be performed under an agreement with Newbold entered into prior to signing the contract for the job.
In its closing argument, Department counsel acknowledged that the conduct herein is not "serious," but still warrants the imposition of a fine. Counsel also recommended that because of "a little bit more culpability on the part of Hammond," he should receive the more stringent fine. Accordingly, it is concluded that $200 and $100 fines for Hammond end Newbold, respectively, are appropriate, such fines to be paid within thirty (3O) days after the final order in this cause is rendered.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent Newbold be found guilty of violating Subsections 489.533(1)(k), Florida Statutes, and that a $100 fine be imposed for such conduct, the fine to be paid within thirty (30) days from date of final order in this cause. It is further RECOMMENDED that respondent Hammond be found guilty of violating Subsection 489.513(4), Florida Statutes, and that a $200 fine be imposed for such conduct, the fine to be paid within thirty (30) days from date of final order in this cause.
DONE and ORDERED this 8th day of November, 1983, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 8th day of November, 1983.
COPIES FURNISHED:
Charles Tunnicliff, Esquire
130 North Monroe Street Tallahassee, Florida 32301
Mr. Benjamin R. Newbold, Jr. Route 3, Box 830
Silver Springs, Florida 32688
Mr. Edward I. Hammond 2529 Northeast 6th Street Ocala, Florida 32670
Mr. Alan R. Smith Executive Director
Florida Electrical Contractors Licensing Board
130 North Monroe Street Tallahassee, Florida 32301
Mr. Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 83-002716
Orders for Case No: 83-002716
