STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2789

)

HOMER S. BURKHALTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in the above-styled case on May 2, 1984, in Miami, Florida.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Karen A. Gievers, Esquire

Anderson, Moss, Russo & Gievers, P.A. Suite 2300, New World Tower

100 North Biscayne Boulevard Miami, Florida 33132

ISSUE

The issue presented herein is whether or not the Respondent aided or abetted an unlicensed person(s) to evade the provisions of Chapter 489, Florida Statutes, and whether or not the Respondent was the subject of disciplinary action taken by the local Metro-Dade County Construction Trade Qualifying Board and, if so, what, if any, disciplinary action should be taken.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact.

1. By its Administrative Complaint signed August 3, 1983, Petitioner filed its two-count Administrative Complaint charging the Respondent with engaging in acts and conduct violative of Chapter 489.533(1)(f), (j), (k), and (n), Florida Statutes (1981).

2. During times material herein, Respondent was, and continues to be, a registered electrical contractor and has been issued license number ER 0034149.

   
   

3. On or about July 12, 1982, Donald Holstein provided a verbal estimate to Richard R. Seiter for the installation, by Holstein, of all electrical services in an addition located at 1160 NW 137 Street, North Miami, Florida, for an estimated cost of $1,000 for such services. On that date, Seiter paid Holstein $300 by check as a partial down payment on the $1,000 price quoted by Holstein (Petitioner's Exhibit 5). On July 12 Respondent applied for an electrical permit to perform the electrical work on the addition to the Seiters' home (Petitioner's Exhibit 6).

   
   

4. During times material hereto, Respondent was not under contract to perform the electrical work on the Seiters' home nor was Respondent an employee or employer of Holstein. Also, Respondent and Donald Holstein were not engaged in a partnership to provide electrical contracting services.

   
   

5. On or about July 15, 1982, Donald Holstein reduced to writing the verbal estimate provided to the Seiters (Petitioner's Exhibit 4). On that date, the Setiers paid Respondent $250 which represented the remainder of the $550 down payment which was to be applied toward the $1,000 price quoted by Holstein for the electrical services.

   
   

6. The electrical work for the Seiters was partially performed by Donald Holstein. Respondent performed no work on the Seiters' home either in the way of supervision or in the actual "hands-on" performance of the electrical work contracted for by Holstein.

   
   

7. Donald Holstein is not registered or certified as an electrical contractor with the Electrical Contractors' Licensing Board nor is he licensed to engage in the business of electrical contracting in Dade County, Florida.

   
   

8. On April 5, 1983, the Metropolitan Dade County Construction Trades Qualifying Board (B) Division met and after a hearing, with notice to Respondent, found Respondent guilty of violating Section 10-22(H)(1) of the Code of Metropolitan Dade County by aiding and abetting an unlicensed contractor. Respondent's Certificate of Competency was suspended by that Board for six (6) months 1/ (Petitioner's Composite Exhibit 3).

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The parties were duly noticed pursuant to the notice provisions and requirements of Chapter 120, Florida Statutes.

    
    

11. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

12. Respondent, a registered electrical contractor, is subject to the disciplinary guides of Chapter 489, Florida Statutes.

    
    

13. Competent and substantial evidence was offered herein to establish that the Respondent knowingly combined or conspired with Donald Holstein, an unregistered or uncertified person, by allowing his license to be used by

    Holstein with the intent to evade the provisions of Chapter 489, Part 2, Florida Statutes, in violation of Section 489.533(1)(j) and (k), Florida Statutes.

    Based thereon, Respondent engaged in acts constituting misconduct in the practice of electrical contracting within the meaning of Section 489.533(1)(f), Florida Statutes (1981). It is so concluded.

    
    

14. Respondent, having been the subject of disciplinary action by the Metropolitan Dade County Construction Trades Qualifying Board (B) Division on April 5, 1983, and having been disciplined by that Board amounts to conduct, by Respondent, violative of Section 489.533(1)(n), Florida Statutes (1981). It is so concluded.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner enter a Final Order requiring Respondent to pay an administrative fine in the total amount of $500 for the violations found herein.

DONE AND ENTERED this 26th day of September 1984 in Tallahassee, Florida.

JAMES E. BRADWELL

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 26th day of September 1984.

ENDNOTE

1/ Contrary to the urging by Respondent's counsel, there is no requirement in Section 489.533(1)9(n), Florida Statutes, that there be a nexus between the acts complained of in Count I of the Administrative Complaint and the action taken by the Local Board for a cause of action to flow in this proceeding under Count II.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Karen A. Gievers, Esquire Suite 2300, New World Tower

100 North Biscayne Boulevard Miami, Florida 33132

James Linnan, Executive Director

Board of Construction Industry Licensing Board Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 83-002789

Orders for Case No: 83-002789