STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. MORGAN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3133

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS' LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on August 24, 1988, in Fort Lauderdale, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Robert L. Morgan

7805 Northwest 39th Street Coral Springs, Florida 33065

For Respondent: Clark R. Jennings

Assistant Attorney General Suite 1603, The Capitol

Tallahassee, Florida 32399-1050 BACKGROUND AND PROCEDURAL MATTERS

This case began on May 23, 1988, when the Department of Professional Regulation, Electrical Contractors' Licensing Board gave notice to Petitioner that his application to take the electrical contractors' examination was being denied. The basis for the denial was alleged to be Petitioner's noncompliance with Rules 21GG-5.001(3) and 21GG-5.003(1), Florida Administrative Code.

Petitioner timely sought a review of that determination and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on June 28, 1988.

At the hearing, Petitioner testified on his own behalf and offered three exhibits: Exhibit 1, a letter dated January 25, 1988 from Morgan to Traylor, Exhibit 2, a drawing for Greenbriar Nursing Home, and Exhibit 3, data re: an automatic transfer switch with diagram. Respondent presented the testimony of Madge Lewis and James P. Williams and offered one exhibit, Petitioner's application for examination. All exhibits were received into evidence.

The transcript was filed on September 6, 1988. The parties were granted ten days within which to file their proposed findings of fact and conclusions of

law. Respondent moved for an extension of time to file a proposed recommended order which was granted by order entered October 6, 1988. The parties have not timely submitted proposed findings of fact, therefore, this recommended order is issued without rulings on proposals.

ISSUE

The central issue in this case is whether Petitioner's application to take the electrical contractors' examination should be approved or denied.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Petitioner filed an application for electrical contractor's examination on October 23, 1987.

   
   

2. The type of examination sought by Petitioner was electrical contractor unlimited and the business for which he sought qualification was M.G.I.-Morgan Group, Inc.

   
   

3. Question 14 of the application provided:

   
   

   You must show three(3) years experience that shows that you have designed, planned, laid- out and directly supervised electrical construction activities and the installing of electrical components. Unless you are applying for a specialty exam, a substantial part of your work supervised must be commercial and 3-phase service. For each employer listed, you must submit a list of jobs that you supervised electrical construction activities, ON FORM OA-I

   
   

4. Petitioner specializes in the design and installation of generator sets. Approximately 99 percent of his business is commercial or 3-phase. Petitioner's experience does not include electrical construction away from the power source. Petitioner's company designs and installs an alternate power source to supplement a structure's main electrical source. During power outages, the alternate power source (the generator) becomes the primary electrical power for the facility. The wiring or construction away from the generator is not done by Petitioner. Petitioner installs the switches and wiring that are necessary to assure a prompt delivery of power from the generator during an outage. This experience exceeds three years.

   
   

5. The work experience described in paragraph 4 is the type Petitioner intends to continue if licensed; however, the license requested would authorize Petitioner to do other types of electrical work for which he has not demonstrated work experience.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

7. Section 489.521(2), Florida Statutes, requires that an applicant for licensure possess the skill, knowledge, and experience, as evidenced by 3 years' proven experience in the trade or education equivalent.

   
   

8. Rule 21GG-5.003(1), Florida Administrative Code, provides, in part:

   
   

   All applicants must show that their proposed qualifying agent (in the case of a sole proprietorship the applicant himself) has three years proven experience in the trade as an electrical contractor or in a responsible management position with an electrical contractor. In this experience the qualifying agent must show that he has designed, planned laid out, and directly supervised electrical construction activities and the installing of electrical

   components. The experience must include a substantial proportion of work that is commercial and 3-phase service (unless the application is for a specialty contractor's license). If, in his experience, the qualifying agent did not pull the electrical permit and hold the responsibility for assuring compliance with electrical codes, he must demonstrate specifically how and to

   what extent he directly supervised electrical construction activities.

9. Rule 21GG-5.001, Florida Administrative Code, provides, in part: Definitions. As used in this chapter:

   * * *

   1. "Qualifying agent" means a person whose requisite skill, knowledge, and experience to supervise, direct, manage and control the electrical contracting of a business entity was gained through experience either as an electrical contractor or in a responsible management position with an electrical contractor.

   2. "Responsible management" means a managerial position of authority, supervision, and control over the electrical contracting activities of a business entity which shall include a sufficient demonstration by the applicant's qualifying agent of having obtained a professional level of skill, knowledge, and experience in the electrical contracting trade.

      * * *

      (5)"Electrical contractor or unlimited electrical contractor" means a person as defined in Section 489.505(12), Florida Statutes, whose scope of practice is not limited to a specific segment of electrical contracting. An electrical contractor or

      unlimited electrical contractor shall be either certified or registered.

      
      

10. In the case at issue, Petitioner has shown himself to be a qualified designer and installer of generator sets. Unfortunately, this experience, while vast and impressive, is not sufficient under the rules to establish the requisite experience necessary to qualify for examination. Petitioner's experience and expertise in the specific segment of electrical contracting that he does is exceptional. However, Petitioner has not established that he served in a responsible management position with an electrical contractor. He is, therefore, by definition, ineligible to take the examination. Further, there is no authority which would allow the rules to be waived.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Department of Professional Regulation, Electrical Contractors' Licensing Board enter a final order denying the application of Robert L. Morgan.

DONE AND RECOMMENDED this 19th day of October, 1988, in Tallahassee, Leon County, Florida.

JOYOUS D. 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 October, 1988.

COPIES FURNISHED:

Robert L. Morgan

7805 Northwest 39th Street Coral Springs, Florida 33065

Clark R. Jennings Assistant Attorney General Suite 1603, The Capitol

Tallahassee, Florida 32399-1050

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Pat Ard, Executive Director Department of Professional Regulation Electrical Contractors' Licensing Board

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-003133

Orders for Case No: 88-003133