STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 85-2413

)

CLAUDE JANSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, on April 30, 1986 in Ft. Myers, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esq.

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Claude Janson, pro se

925 Country Club Boulevard Cape Coral, Florida 33904

This cause arose upon an Administrative Complaint filed by the Petitioner whereby it seeks to discipline the Respondent, Claude Janson, as to his licensure status as an electrical contractor, for alleged violations of Chapter 489, Florida Statutes. In essence the Respondent is charged with aiding, abetting, combining or conspiring with an unlicensed person to allow that unlicensed person to operate under authority of his contractor's license and thus to evade the provisions of Chapter 489, Florida Statutes. The Respondent is also charged with being guilty of fraud, deceit, negligence, incompetency or misconduct in the practice of electrical contracting. He is charged with violations of subsection 489.533(1)(j); (k); (f) and (o) Florida Statutes (1983).

The Petitioner presented the testimony of five witnesses and offered and had admitted into evidence six exhibits. The Respondent testified on his own behalf. Subsequent to the hearing, the proceedings were transcribed and the parties were afforded the right to file proposed findings of fact and conclusions of law. The Petitioner timely filed its proposed findings of fact and conclusions of law and the Respondent filed none. Those proposed findings of fact and conclusions of law are treated in this recommended order and are treated once again in the appendix attached hereto and incorporated by reference herein.

The issue concerns whether the Respondent committed the conduct alleged, whether that conduct constitutes violations of the statutory authority plead as a basis for the charges in the Administrative Complaint and what, if any, penalty is warranted.

FINDINGS OF FACT

1. The Respondent, Claude Janson, is a registered electrical contractor. He holds license number ER005208 and is the qualifying agent for J.R. Electric, Inc., which is the firm under which he practices electrical contracting. The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards embodied in Chapter 489, Florida Statutes, and related rules as they relate to electrical contractors.

   
   

2. At all times material hereto Bob Sangelo was not licensed as an electrical contractor. The Respondent was aware that Sangelo was not so licensed. On or about April 27, 1984, the Respondent authorized Sangelo, who was then unlicensed, to obtain electrical contracting permits on behalf of the Respondent's firm, J.R. Electric, Inc., from the Cape Coral, Florida building department. On or about January 15, 1985, Sangelo, d/b/a Sangelo's Electric, submitted a written bid proposal to Mr. Bill Sutherland to perform electrical contracting at Sutherland's residence In Cape Coral, Florida. The two parties agreed to a contract price of $1750 for the work. Thereafter on February 28, 1985, Sangelo submitted a second written proposal containing revisions to the proposed contract, and work to be done, which provided for a contract price of

   $1875. All negotiations leading to the contract for the

   electrical work occurred between Sangelo and Sutherland. Sutherland had no contact with the Respondent, Claude Janson, and at the time did not even know him. The Respondent provided no assistance and had no part in the preparation of the estimate or bid involved in the performing of the electrical contracting work for Mr. Sutherland.

3. The electrical work proposed to be performed by Sangelo required an electrical permit to be obtained by a licensed electrical contractor from the City of Cape Coral. On March 8, 1985, Sangelo obtained the electrical permit numbered 0329685 from the City of Cape Coral using the firm name J.R. Electric, and the contracting license number ER005208. The permit was for the electrical work to be performed by Sangelo for Mr.

   Sutherland at his residence, but the permit was issued because of Sangelo's representation that the contractor would be J.R. Electric, Inc., using the Respondent's license number. Sangelo Electric was never qualified by the Respondent as a business entity under which he practiced electrical contracting under his own license. Sangelo Electric was Bob Sangelo's independent business with no connection, other than friendship, with the Respondent or the Respondent's electrical contracting business.

   
   

4. The Respondent and Sangelo had an informal friendly relationship in which Sangelo would help the Respondent with his electrical contracting jobs in exchange for the Respondent referring him electrical service work. Sangelo did not receive an hourly wage from the Respondent and the informal friendly relationship was never reduced to writing. Sangelo was not a regular employee of the Respondent, but rather functioned much like a subcontractor. The Respondent had previously authorized Sangelo to obtain electrical permits on the behalf of and in the name of the Respondent and J.R. Electric, Inc., the Respondent's firm. The Respondent was also aware that Sangelo did electrical contracting work on his own without being licensed.

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Section 489.533, Florida Statutes, authorizes the Electrical Contractors Licensing Board to revoke or suspend the license of electrical contractor, impose an administrative fine, place the contractor on probation, reprimand him or restrict the authorized scope of his practice if the contractor is found guilty of committing any of the acts enumerated in that section. Included in the enumerated offenses are those of aiding and abetting any person to evade the provisions of Chapter 489 and combining or conspiring with another to evade the provisions of Chapter 489, Florida Statutes.

   
   

7. Section 489.505(8) Florida Statutes, provides in pertinent part: ~

   "Electrical contractor 'or contractor' means.

   . . any person, firm or corporation that engages in the business of electrical contracting; or that undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid to engage in the business of electrical contracting; or that does itself or by or through others engage in the business of electrical contracting."

   
   

8. In its Administrative Complaint, the Petitioners charge the Respondent with the related offenses of "aiding or abetting" any person to evade the provisions of Chapter 489, Florida Statutes, and with "combining or conspiring" with uncertified or unregistered persons by allowing his own registration to be used by those persons with the intent to evade the provisions of that Chapter.

   
   

9. The elements of proof necessary to establish the offense of aiding or abetting a person to evade the provisions of Chapter

   489 involve:

   
   

   1. An unlicensed party or parties, without the required local competency license, who undertake certain contracting work;

      
      

   2. That the contracting work requires a state contractor's license;

      
      

   3. That the Respondent assisted that unlicensed person in some way to obtain, start, perform or complete the work; and

      
      

   4. The Respondent was not a principal, employee or officer of the unlicensed party.

   
   

10. The elements of proof necessary to establish the offense of combining or conspiring are:

    
    

    1. An unlicensed party undertook certain contracting work;

       
       

    2. Such work requires a state contractor's license;

       
       

    3. The Respondent knew that the party was unlicensed to perform such contracting work;

    4. The Respondent was not a principal employee or officer of the unlicensed party when the work was being done;

       
       

    5. The Respondent was asked or offered to assist the unlicensed party in some way to do the contracting work;

       
       

    6. The Respondent performed some act to assist the unlicensed party to start, perform or complete the contracting work.

       
       

11. Proof of combining or conspiring requires showing of an agreement and intent to commit the underlying offense. Ashenoff v. State, 391 So 2d 289 (Fla. 3rd DCA 1981). The agreement may be inferred from circumstantial evidence. Estraliz v. State, 366 So 2d 803 (Fla. 3rd DCA 1979).

    
    

12. Bob Sangelo, an unlicensed contractor, whom the Respondent knew to be unlicensed, submitted two written proposals or bids on behalf of his firm, Sangelo Electric, an unlicensed, unqualified entity, to perform electrical contracting work for Mr. Sutherland. The work required a licensed electrical contractor to obtain a permit before the work could be legally performed. The Respondent allowed Mr. Sangelo to use the Respondent's electrical contractor's license and number to obtain the permit needed for the work Sangelo had contracted to perform, knowing that Sangelo was unlicensed and that the type of work he was doing required a license. The Respondent was not a principal employee or officer of Sangelo's firm and had never properly qualified Sangelo's or any other firm, except his own, as an entity under which he did business with his own license. His own firm was not involved in any way in the contracting work which is the subject of this prosecution.

13. The Respondent knew Sangelo was doing electrical contracting work which legally required him to be licensed and permitted Sangelo to obtain the electrical permit under the name of his firm using the Respondent's license. During the course of their past business relationship, the Respondent had allowed Sangelo to use his license and firm name as Justification to the building department to obtain permits for other jobs. In view of the arrangement between Sangelo and Janson, the agreement to thus evade the provisions of Chapter 489 is inferred.

    
    

14. The evidence of record thus demonstrates in a clear and convincing way that the Respondent has violated Section 489.533 in these particulars by both aiding and abetting and combining and conspiring with Bob Sangelo to evade the provisions of Chapter 489 by knowingly allowing his registration to be used by

    an unlicensed person in furtherance of that person's performance of unlicensed contracting.

    
    

15. The Petitioner in its complaint has also charged the Respondent with negligence or misconduct in his practice of electrical contracting. The elements of proof necessary to establish this offense are that the Respondent was responsible for certain electrical contracting in which there is evidence of negligent or otherwise improper performance. It has not been established that the Respondent was negligent in the performing of any electrical contracting work itself, in fact the Respondent had nothing to do with the electrical contracting work being performed in the situation at bar. Likewise, there is no evidence that Sangelo actually performed the work in a negligent manner. The negligence referenced in Section 489.533(1)(f) in this regard refers in reality to the manner in which the electrical contracting work is performed. The type and manner of performance is not at issue here.

    
    

16. The Respondent has committed the offense of misconduct in the practice of electrical contracting however. The Respondent is guilty of misconduct in the practice of electrical contracting by authorizing Sangelo to obtain the permits using his license number and in allowing the representation to be made that the electrical work was to be performed by J.R. Electric, Inc., when in reality Sangelo d/b/a Sangelo Electric had actually contracted to perform the work and performed it, without any involvement whatever by the Respondent or his firm. Thus, it has been demonstrated by clear and convincing evidence that the Respondent in this particular has violated Section 489.533(1)(f), Florida Statutes, and, derivatively, Section 489.533(1)(o), Florida Statutes, (1983) by failing in a material respect to comply with the provisions of part two of Chapter 489, Florida Statutes.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is

RECOMMENDED that the Respondent be found GUILTY of the violations as charged in the Administrative Complaint and that he be fined the sum of $1,000.

DONE and ORDERED this 18th August, 1986 in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1986.

COPIES FURNISHED:

Charles F. Tunnicliff, Esq. Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Claude Janson

925 Country Club Boulevard Cape Coral, Florida 33904

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Pat Ard, Executive Director Board of Electrical Contractors Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings Slocum Benton General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-002413

Orders for Case No: 85-002413