STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, ) ELECTRICAL CONTRACTORS' LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2737

)

JOHN KNUTELSKI, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal Section 120.57(1), Florida Statutes, hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. The initial session of that hearing was conducted on March 13, 1984, in Daytona Beach, Florida, with a concluding session being held on April 5, 1984, in Ormond Beach, Florida. This Recommended Order is being entered following receipt and review of the transcript of proceedings as filed with the Division of Administrative Hearings on April 23, 1984. The parties in the person of their attorneys have filed proposed recommended orders and associated arguments, the last of those proposals being filed with the Division of Administrative Hearings on May 3, 1984. Those proposals have been considered prior to the entry of this Recommended Order. To the extent that the proposals are consistent with the Recommended Order they have been utilized. In the event of inconsistency, the proposals are rejected based upon lack of materiality, relevance or as being contrary to facts found.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Joseph D. Krol, Esquire

OSSINSKY, KROL and HESS

Post Office Drawer E

Daytona Beach, Florida 32018

ISSUES

The issues raised in this action are pursuant to an administrative complaint brought by the State of Florida, Department of Professional Regulation against the Respondent, accusing him of violations of Chapter 489, Florida Statutes, related to the failure to obtain a necessary electrical permit for work being done in Ormond Beach, Florida, and the further contention that the work demonstrated negligence, incompetency and misconduct in his practice of

electrical contracting. The details of that administrative complaint are more completely discussed in the Conclusions of Law.

FINDINGS OF FACT

1. Respondent is a licensed electrical contractor, licensed by the State of Florida, Electrical Contractor's Licensing Board, operating under license number ER0008106. He held that license at all relevant times in this cause and was appropriately licensed by Ormond Beach, Florida, as an electrical contractor in that same time sequence. This case is presented for consideration based upon the administrative complaint identified in the Issue statement and the timely request for formal hearing made by the Respondent.

   
   

2. On January 7, 1983, Respondent contracted with Hugh Upton, owner/trustee of Outrigger Beach Club to do certain electrical work, to include the wiring of a whirlpool or jacuzzi to the extent of two pump motors and a blower with associated disconnect switches. Another phase of the agreement had to do with wiring of bathrooms in the area of a swimming pool which is part of the residential complex known as the Outrigger Beach Club. The whirlpool phase of the electrical work to be done by the Respondent did not include lighting for the jacuzzi or timer-switches for the operation of the pumps and blower related to that jacuzzi. The agreement between Respondent and Upton was to the effect that the disconnect switches associated with the work done on the jacuzzi or whirlpool/spa would be installed on the inside walls of the pool pumphouse. Following a disagreement on this aspect of the contract, this matter was clarified in an amendment to the contract proposal entered into on January 27, 1983, between Respondent and Mark A. Shader, another owner of Outrigger Beach Club. That clarification also indicated that timing switches were not included in the project work related to the whirlpool/spa.

   
   

3. The work on the bathhouses was in keeping with an electrical permit which had been obtained by the general contractor who was doing other work at the Outrigger Beach Club. No electrical permit was obtained for electrical work which the Respondent did on the whirlpool/spa. This permit was not obtained from the point of view of the Respondent because he was of the opinion that Upton, whom he knew to be the owner, had obtained the necessary permit. Upton had said this to the Respondent. Ormond Beach, Florida Ordinance No. 69-44 Section 13(c) requires that permits be obtained for electrical work done in the City of Ormond Beach and that those permits be obtained by a master electrician. Respondent was aware that the work related to the whirlpool/spa or jacuzzi could not be done without obtaining the necessary electrical construction permit from the City of Ormond Beach. In addition, it is reasonable to assume that he either knew or should have known that a master electrician, such as the Respondent, would need to apply for such permit. Finally, in keeping with the electrical contracting licensing requirements set forth in Section 489.503, Florida Statutes, the only occasion within which an owner could make application for such a permit would be related to single family or duplex residences and the Outrigger Beach Club was not such a residence.

   
   

4. In doing the electrical work at the Outrigger Beach Club, the panel box to which the Respondent "tied in" was perceived by him to be a main panel as opposed to a subpanel. His impression was gained based upon the fact that he found neutral and ground wires tied together in that panel box and the fact that he discovered that the panel was bonded to the neutral and ground bars. Respondent thought this was a main panel notwithstanding the fact that there were 20 or 30 breakers within the panel without a main disconnect, which would indicate that it was a subpanel and not a main panel, in that a main panel may

   not have more than six breakers without having an associated main disconnect. In fact it was a subpanel.

   
   

5. In the area of the neutral and ground bars or bussbar in the panel, Respondent attached the green or ground wires related to the pumps and blowers associated with the installation of the whirlpool/spa. These were attached to the top portion or smaller of the two-piece bussbar arrangement. In addition, neutral return white wires related to the blower and one of the pump motors for the hot tub installation were also placed on that top strip of the bussbar, which bussbar was constituted of the two strips with attached wires. Respondent had also run a neutral and a ground wire from the bathhouse work and project site and attached them to the two-strip bussbar arrangement. The bathhouses ground was located on the top bussbar or smaller of the two strips in the bussbar. Other items on this bussbar at the time of Respondent's installation of his wires on the top strip included a neutral white wire related to an overhead light fixture in the pool pumphouse, and a white neutral wire related to a pump motor which was a circulating pump system for the main swimming pool as contrasted with the whirlpool/spa.

   
   

6. Thus, the Respondent had tied together neutral and ground wires on the same strip of the bussbar in the subpanel. The City of Ormond Beach by its Ordinance No. 82-34 had adopted the National Electrical Code, and the 1981 edition of the national Electrical Code, which has application at Section 250-23 to this case, prohibits the attachment of neutral and ground wires on a common bussbar in a subpanel. By contrast, such installation is allowed in a main panel per the National Code. With appropriate inquiry, which inquiry was not undertaken by Respondent, he could have ascertained that this was a subpanel and not a main service panel and avoided this violation of the National Electrical Code. Nonetheless, at the time of the matters in dispute, the City of Ormond Beach in its enforcement function, did not require compliance with that provision of the National Electrical Code which would not allow for the placement of neutral and ground wires on a common bussbar in a subpanel. Enforcement of the ordinance commenced after March 5, 1983.

   
   

7. In late February, the Respondent was still at odds with Upton on the subject of the placement of the disconnect switches associated with the two pumps and blower, i.e., Respondent desired to place them on the inner wall and Upton wished the placement on the outside wall of the pool pumphouse. Respondent was also concerned that Upon wished to have him undertake work not required by the contract and for which he would not be paid, and expressed further concern to Upton about the safety of some of the wiring within the pool pumphouse. Being unable to resolve this dispute, Respondent sought final approval of the work which he had concluded related to the bathhouses and a partial final inspection by the City of Ormond Beach related to the work which he had done on the whirlpool/spa. Respondent did not return to the project following his conversation with Upton and the request to the City of Ormond

   Beach building officials. The inspection which Respondent had requested was not performed.

   
   

8. A plumbing contractor, Herbert Weems, had been contacted by Upton to perform the installation of the whirlpool/spa proper. He also installed the underwater lighting fixture that was involved in this process to the extent of threading appropriate wires from the preassembled light fixture leaving a stub- out or pigtail for future hookup of electrical power. The general contractor, a Rick Sita, was to pour the concrete apron around the whirlpool/spa in keeping with his contractual responsibility with the owner of the Outrigger. When this decking was poured, Sita had failed to install the handrail to the

   whirlpool/spa. Consequently, Weems grouted out an area and installed the handrail. No electrical grounding was placed by Weems in the installation of the handrail. At one point in his work, Weems tested the pipes associated with the whirlpool/spa by turning on the motors which Respondent had wired.

   
   

9. After the dispute between the Respondent and Upton, Upton hired another electrician, one Daniel Collins, to do other work related to the whirlpool/spa. This work was done on March 2, 1983. It included the installation of timer switches on the outside wall of the pool pumphouse pertaining to the pump motors and blower in the whirlpool/spa. The switches were grounded by the placement of a green wire on the larger section or bottom of the two bussbar strips in the subject panel within the pump poolhouse. This installation of the timer switches was otherwise tied in with the work which Respondent had done in hooking up the pumps and blowers remote from the panel. Collins was also involved with the hooking up of the light in the whirlpool/spa and in doing so, he connected his green wire ground to the green wire grounding conductor which Respondent had placed in the panel to ground the bathhouses. This did not require any installation at the bussbar proper but was a matter of splicing in at a junction box. The hot wire portion of the light fixture was tied in with an existing timer within the poolhouse which dealt with some tree lights on the property. Collins also operated on the assumption that necessary permits had been obtained. When he left the job on March 2, 1983, he was not of the impression that his work was ready for final inspection. A couple of items remained that needed to be attended before such inspection could be done.

   
   

10. As with Collins, Weems was not of the impression that the plumbing was ready for final inspection in that a part related to the whirlpool/spa skimmer had not been obtained and the whirlpool/spa was not ready for public use, either from the point of view of the plumbing contractor or Collins, the second electrical contractor. Although he had no reason to believe the whirlpool/spa was ready for public use based upon discussions held with his contractors, Upton conveyed the impression to one J. Sebring, an employee at the Outrigger, that the whirlpool/spa could be used by the public and it was opened on March 4, 1983. On that date, people used the whirlpool/spa to include the handrail.

    
    

11. On the next day, members of the Tennison family, a mother and her sons, entered the whirlpool/spa. The two children entered the jacuzzi first, seating themselves in the bucket seats in the apparatus. Their mother went around to the side where the handrail was located and entered the whirlpool/spa while holding onto the handrail. At that time, the circulation pump and associated jets were operating in the whirlpool/spa. When Mrs. Tennison entered the water, she received an electrical shock. One of the sons then left the whirlpool/spa while the other son grabbed his mother's leg and was also the victim of an electrical shock. The two victims were subsequently removed from the whirlpool/spa and the child died as a result of the exposure to the electrical shock. By way of explanation, the smaller strip or top strip in the area of the two-strip bussbar in the pumphouse had become partially dislodged from the larger strip or bussbar. The set screws holding the strips together had loosened. As a consequence, the flow of power related to the running equipment that was connected to the disloged smaller bussbar, either the pool pump motor, pool pump light, or a motor involved with the whirlpool/spa connected to the small buss bar, was no longer involved in a complete circuit, in that 120 volts off the breaker was going through what was then a floating bussbar, the small bussbar, and out the green ground wire associated with the whirlpool/spa light, which originally was placed for the benefit of the bathhouses, through the shell of the whirlpool/spa light that was in contact with the water in the whirlpool/spa, thence into the water through the initial

    victim onto the handrail and then to ground thus completing the circuit. In effect, the female victim's foot was at 120 volts and her hand was at ground. With the current flowing through her foot, when her son grabbed her, the current went through him and then to ground.

    
    

12. Subsequent testing done to arrive at an explanation of why the accident occurred revealed that return voltage from the main pool circulating pump motor that has been discussed, transmitted through the neutral wire to the small bussbar strip did not achieve a ground, it went back out on the green wire which went to the light in the whirlpool/spa before achieving a ground at the whirlpool/spa. Once this phenomenon was observed in the post accident testing, no other tests were made related to neutral wire items found on the smaller bussbar for motors for the whirlpool/spa tub and light in the pool house. Even though the other items were not tested, they could have been part of the accident scenario, since they were in operation when the accident occurred and were of similar electrical function. Whatever the explanation as to the agency which combined with the green grounding wire going from the pool pumphouse to the whirlpool/spa light to cause this problem, the facts are clear that both the Respondent and Collins had left the two bussbar strips attached firmly together and without the green ground wire splicing for whirlpool/spa light which Collins made to the green grounding wire installed by the Respondent to the bussbar from the bathhouses, and the unexplained separation of the bussbar strips, the accident would not have occurred. In this connection, even had the green and white wires been placed in a main panel in series as allowed by the National Electrical Code, had they become separated, in the underlying fact pattern of this case, the accident would have still occurred. Therefore, the implications of mixing these wires on the common bussbar in other than a main panel becomes less significant in terms of the implications of such action.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action, per Section 120.57, Florida Statutes.

    
    

14. Ruling was reserved on the question of the admissibility of Petitioner's Exhibit No. 5, which is a deposition of John Howell and supporting exhibits. That deposition is admitted, there being no requirement that the Petitioner indicate that it intends to use the deposition for other than discovery purposes and in view of the fact that the Respondent was immediately advised of the filing of the deposition at the final hearing. See Rules 1.310(f)(3) and 1.390(b), Florida Rules of Civil Procedure.

    
    

15. Petitioner has accused the Respondent of a violation of Section 489.533(1)(i), Florida Statutes, for "willfully or deliberately disregarding and violating the applicable building codes or laws of the State or of any counties and municipalities thereof." It is concluded that the Respondent was aware that the City of Ormond Beach, Ordinance No. 69-44, Section 13, required him to obtain an electrical permit prior to conducting the work on the whirlpool/spa at the Outrigger Beach Club. Notwithstanding that knowledge, he deliberately chose to ignore that requirement and did not obtain the permit before commencing the work. It is not a sufficient excuse or defense to assert that the owner told him that such permit had been obtained, in view of the fact that no provision is made for the owner to obtain that permit from the City of Ormond Beach on this occasion, a fact Respondent was aware of or should have known. Moreover, the fact that the owner would not be allowed to obtain that permit on this occasion is identified in the exemption section of Section 489.503(7), Florida Statutes, the statute under which Respondent's license condition is governed. In view of

    this violation, Respondent is subject to the penalties set forth in Section 489.533(2), Florida Statutes.

    
    

16. Respondent is also accused of a further violation of Section 489.533(1)(i), Florida Statutes, and of negligence, incompetence or misconduct in the practice of electrical contracting' in violation of Section 489.533(1)(f), Florida Statutes. This pertains to the placement of neutral and ground wires (white and green) on a common bussbar in a subpanel in violation of the City of Ormond Beach Ordinance No. 82-34 as it implements the National Electrical Code, Section 250-23, related to the prohibition against placement of those wires as done in the subpanel. Petitioner further would penalize the Respondent for what it claims is the proximate result of this violation, that is to say, the accident in which a life was lost.

    
    

17. While Respondent's explanation related to his ability to identify the panel in the pool pumphouse as a subpanel and not a main panel is not accepted, the City of Ormond Beach did not consider the placement of the neutral and ground wires on a common bussbar in the subpanel a violation of their ordinance until the advent of the accident. Consequently, his actions were not a deliberate or willful violation of the subject ordinance or negligence, incompetence or misconduct, in that his actions were not contrary to local law as enforced. In addition, Respondent took the necessary steps to secure the two strips within the bussbar apparatus and he was not negligent or incompetent or involved in misconduct when he did so. Nothing which the Respondent did has been shown to be the cause of the separation of the strips, nor can he be said to be responsible for Collins' election to tie the whirlpool/spa light to the green ground wire that serviced the bathhouses. In view of these intervening circumstances of the separation and the involvement of the other electrician, Respondent cannot be said to have acted negligently, incompetently or through misconduct.

    
    

18. Based upon a full consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a final order he entered which absolves the Respondent of any violation of Section 489.533(1)(f), Florida Statutes, and fines the Respondent in the amount of $1,000 for violation of Section 489.533(1)(i), Florida Statutes.

DONE AND ENTERED this 21st day of June 1984, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 21st day of June 1984.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Joseph D. Krol, Esquire Post Office Drawer E

Daytona Beach, Florida 32018

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

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION ELECTRICAL CONTRACTORS' LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 36717

DOAH CASE NO. 83-2737

JOHN KNUTELSKI,

Respondent.

/

ORDER

Respondent, John Knutelski, holds Florida license No. ER 0008106 as a registered electrical contractor. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the license.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.

The Electrical Contractors Licensing Board met on August 17, 1984, in Tampa, Florida, to take final agency action. The Petitioner was represented by Charles Tunnicliff, Esquire. The Respondent represented himself.

FINDINGS OF FACT

The Board adopts the Findings of Fact of the Recommended Order.

CONCLUSIONS OF LAW

Petitioner has accused the Respondent of a violation of Section 489.533(1)(i), F.S., for "willfully or deliberately disregarding and violating the applicable building codes or laws of the State or of any counties and municipalities thereof." It is concluded that the Respondent was aware that the City of Ormond Beach, Ordinance No. 69-44, Section 13, required him to obtain an electrical permit prior to conducting the work on the whirlpool/spa at the Outrigger Beach Club. Notwithstanding that knowledge, he deliberately chose to ignore that requirement and did not obtain the permit before commencing the work. It is not a sufficient excuse or defense to assert that the owner told him that such permit had been obtained, in view of the fact that no provision is made for the owner to obtain that permit from the City of Ormond Beach on this occasion, a fact Respondent was aware of or should have known. Moreover, the fact that the owner would not be allowed to obtain that permit on this occasion is identified in the exemption section of Section 489.503(7), F.S., the statute under which Respondent's license condition is governed. In view of this violation, Respondent is subject to the penalties set forth in Section 489.433(2), F.S.

The Respondent is also guilty of a violation of Section 489.533(1)(i), F.S., (willfully violating applicable building codes) and Section 489.533(1)(f), F.S., (upon proof that he is guilty of negligence, incompetency, or misconduct in the practice of electrical contracting. This pertains to the placement of neutral and ground wires (white and green) on a common bussbar in a subpanel in violation of the City of Ormond Beach Ordinance No. 82-34 as it implements the National Electrical Code, Section 250-23, related to the prohibition against placement of those wires as done in the subpanel. We cannot conclude that this violation was the cause of the floating ground and therefore the cause of the accident.

The Respondent shall pay a fine of $1000.00 within thirty days The Respondent is hereby REPRIMANDED.

The Respondent is hereby placed on PROBATION for six months. He shall not violate any law or regulation relating to contracting.

The Board has reviewed the entire record. The increase in penalty is justified on the basis of the Board's additional conclusion that violations of Section 489.533(1)(f) and (i), F.S., did occur.

DONE AND ORDERED in Tallahassee, Florida, this 23rd day of August, 1984.

FLORIDA ELECTRICAL CONTRACTORS' LICENSING BOARD

Ernie Isaac, Chairman

Docket for Case No: 83-002737

Orders for Case No: 83-002737