STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION (ELECTRICAL ) CONTRACTORS' LICENSING BOARD), )

)

Petitioner, )

)

vs. ) CASE NO. 85-1469

)

GERALD Z. MICKEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted on July 9, 1985, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: (No Appearance)

INTRODUCTION

This is a license discipline case in which the Department of Professional Regulation seeks to have disciplinary action taken against the Respondent. The basis for the disciplinary action is set forth in a three-count Administrative Complaint, the essential allegations of which may be summarized as follows:

Count One charges the Respondent with violations of Section 489.533(1)(n), Florida Statutes, for having disciplinary action taken against him by a local government; Section 489.533(1)(i), Florida Statutes, for violation of local building codes; and

Section 489.533(1)(f), Florida Statutes, because of gross negligence or misconduct in Respondent's practice of electrical contracting.

Count Two charges the Respondent with violation of Section 489.533(1)(o), Florida Statutes, for failure to comply with Sections 489.533(1)(f) and 489.517(3), Florida Statutes.

Count Three charges the Respondent with violation of Section 489.533(1)(f), Florida Statutes, on the basis of gross negligence or misconduct in Respondent's practice of electrical contracting.

By Notice of Hearing issued on May 30, 1985, all parties were notified that the hearing in this case would be held at 9:30 a.m. on July 9, 1985, in Room 250, Dade County Courthouse,

73 West Flagler Street, Miami, Florida. The Hearing Officer arrived at the hearing location approximately 30 minutes prior to the designated time. The Respondent was not present and did not thereafter appear. Due to the absence of the Respondent, the Hearing Officer waited until 9:54 a.m. to commence the hearing. The Respondent still not having arrived by that time, the Hearing Officer commenced the hearing and received evidence offered by the Petitioner in support of the allegations of the Administrative Complaint. The presentation of the Petitioner's evidence was completed at 10:22 a.m. Inasmuch as the Respondent had still not appeared, the record was closed without receiving any evidence on behalf of the Respondent.

FINDINGS OF FACT

Based on the exhibits received in evidence, and on the testimony of the witness at the hearing, I make the following findings of fact.

1. The Respondent, Gerald Z. Hickey, was issued license number ER0008796 by the Electrical Contractors' Licensing Board on November 11, 1983. This license has never been suspended. However, this license expired on June 30, 1984, and is now in a delinquent or "inactive" status.

   
   

2. On March 10, 1985, Gerald Z. Hickey was the electrical contractor at an electrical job located at 1500 N.E. 162nd Street, North Miami Beach, Dade County, Florida. On that date at that job location no journeyman electrician was present, but electrical work was being performed by an unlicensed person. On that date at that job location Gerald Z. Hickey was using a

   temporary service to supply ungrounded and unfused conductors and receptacles at the job site. On that date at that job location receptacles were installed without a Ground-Fault Circuit Interrupter and without a grounding conductor. On that date at that job location Gerald Z. Hickey had failed to provide Ground-Fault protection for personnel at the construction site. These conditions at the job site created a risk of serious injury or death to employees at the job site.

   
   

3. As a result of the facts described in the preceding paragraph the Construction Trades Qualifying Board (CTQB) of Metropolitan Dade County brought charges against Gerald Z. Hickey, alleging that the facts described above constituted violations of various specified provisions of the Code of Metropolitan Dade County, of the South Florida Building Code, and of the National Electrical Code. Gerald Z. Hickey entered a plea of guilty to the charges brought against him by the CTQB. The decision of the CTQB was to find Gerald Z. Hickey guilty and to fine him a total of $7,500 and to suspend his certificate of competency for a period of one year.

   
   

4. The Code of Metropolitan Dade County, the South Florida Building Code, and the National Electrical Code are all applicable to electrical contracting jobs in Dade County, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable statutes, rules, and court decisions, I make the following conclusions of law.

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Florida Statutes.

   
   

6. Section 489.533(1), Florida Statutes, contains the following provisions relevant to the disposition of this case:

   
   

   1. The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

      
      

      *** *** ***

      
      

      (f) Upon proof that the licensee is guilty of fraud or deceit, or of negligence,

      incompetency, or misconduct in the practice of electrical contracting;

      
      

      *** *** ***

      
      

      (i) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipality or county thereof;

      
      

      *** *** ***

      
      

      1. Disciplinary action by any municipality or county, which action shall be reviewed by the Board before the board takes any disciplinary action of its own; or

         
         

      2. Failing in any material respect to comply with the provisions of this act.

      
      

7. Subsection (2) of Section 489.533, Florida Statutes, authorizes the Electrical Contractor's Licensing Board to impose various penalties for violations of Subsection (1) of Section 489.533, Florida Statutes, including revocation or suspension of a license and imposition of a fine of up to $1,000 for each count or separate offense.

   
   

8. The actions and failures to act described in paragraph

   3 of the findings of fact constitute violations of various provisions of the Code of Metropolitan Dade County, of the South Florida Building Code, and of the National Electrical Code. Those actions and failures to act also constitute negligence, incompetency, or misconduct in the practice of electrical contracting.

   
   

9. There is no competent substantial evidence that any of the actions or failures to act which form the gravamen of the charges against Gerald Z. Hickey were willful or deliberate. There is no competent substantial evidence that Gerald Z. Hickey was notified that his license was delinquent or that he engaged in electrical contracting with a delinquent license.

   
   

10. Pursuant to Section 489.517, Florida Statutes, any license which is not renewed automatically reverts to "inactive" status, and pursuant to Section 489.519, Florida Statutes, at any time during the first ten years that a license is in an "inactive" status the licensee can return the license to active

    status by paying certain fees and, if more than one year has elapsed, by taking certain continuing education courses.

    
    

11. Inasmuch as there is no competent substantial evidence that Gerald Z. Hickey was notified that his license was delinquent or that he has engaged in electrical contracting with a delinquent license, Count Two of the Administrative Complaint should be dismissed.

    
    

12. Inasmuch as the allegations of Count Three do nothing more than duplicate a portion of the charges in Count One, Count Three of the Administrative Complaint should be dismissed.

    
    

13. Inasmuch as there is no competent substantial evidence that the conduct of Gerald Z. Hickey was willful or deliberate, the portion of Count One that alleges a violation of paragraph

    (i) of Section 489.533(1), Florida Statutes, should be., dismissed.

    
    

14. Inasmuch as there is competent substantial evidence to establish the remainder of Count One, Gerald Z. Hickey should be found to have violated paragraphs (f) and (n) of Section 489.533(1), Florida Statutes, and an appropriate penalty should be imposed. An important factor in determining the appropriateness of the penalty is the fact that the conduct of Gerald Z. Hickey posed a serious risk of injury to employees on the job site.

RECOMMENDATION

Based on all of the foregoing, I recommend that the Electrical Contractor's Licensing Board issue a Final Order to the following effect:

1. Dismissing Counts Two and Three of the Administrative Complaint.

   
   

2. Concluding chat Gerald Z. Hickey has violated paragraphs (f) and (n) of Section 489.533(1), Florida Statutes, as charged in Count One of the Administrative Complaint and

   
   

3. Imposing on Gerald Z. Hickey a penalty of an administrative fine in the amount of $1,000 and suspending the license of Gerald Z. Hickey for a period of one year.

DONE AND ORDERED this 19th day of July, 1985, at Tallahassee, Florida.

MICHAEL M. PARRISH

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 19th day of July, 1985.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Gerald Z. Hickey 10000 Bahia Drive

Miami, Florida 33189

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Jerry W. Hendry, Executive Director Electrical Contractors Licensing Board Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-001469

Orders for Case No: 85-001469