STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

ELECTRICAL CONTRACTORS )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01-2543PL

)

DAVID KARABLY, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on August 23, 2001, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Gainesville, Florida.

APPEARANCES

For Petitioner: Laura P. Gaffney, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

For Respondent: David Karably, pro se

Post Office Box 12 Earleton, Florida 32631

STATEMENT OF THE ISSUE

Whether the Respondent failed to provide proof of workers' compensation coverage or exemption, and proof of having completed 14 hours of approved continuing education in

response to an audit conducted by the Electrical Contractors Licensing Board for the biennium commencing September 1, 1996, and terminating on August 31, 1998, in violation of Subsection 489.533(1)(o), Florida Statutes, by violating Subsections 489.515(3) and 489.517(3), Florida Statutes, and Rule 61G6- 9.011, Florida Administrative Code, as alleged in the Amended Administrative Complaint.

PRELIMINARY STATEMENT

This cause was heard pursuant to a request for hearing involving material disputed facts filed by the Respondent.

The Petitioner was permitted to file an Amended Administrative Complaint, upon motion, to include both electrical contractor license numbers that have been held by the Respondent. The Amended Administrative Complaint alleged two counts. Count I alleges the failure to document adequate insurance during the board audit, specifically the workers' compensation coverage or exemption. Count II alleges the failure to document the required amount of board approved continuing education.

Prior to commencement of the proceedings herein, the Administrative Law Judge informed the parties that prior to 1975, he had been counsel for the Electrical Contractors Licensing Board (the ECLB) while employed as an assistant attorney general. The parties waived any potential objection to this fact and agreed to proceed with the hearing.

At the hearing the Petitioner presented the testimony of George Ayrish, Program Administrator for the ECLB. The Petitioner submitted exhibits numbered 1 through 11 which were admitted into evidence.

The Respondent, David Karably, appeared and represented himself at the hearing. The Respondent presented exhibit number 1 which was admitted into evidence. The Respondent was permitted to testify in narrative fashion.

Both parties filed post-hearing briefs which were read and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the State of Florida, Department of Business and Professional Regulation (DBPR), the state agency charged with regulating the practice of electrical contracting in Florida and those licensed under Chapter 489, Florida Statutes, pursuant to Section 20.165, and Chapter 455, Florida Statutes.

2. The Respondent is, and has been at all times material to the allegations in the Amended Administrative Complaint, an electrical contractor licensed by the Electrical Contractors Licensing Board. From 1987 until 2000, the Respondent was a registered electrical contractor, holding license number

   ER 0010816. Since August of 2000 the Respondent has been a certified electrical contractor holding license number EC

   0002356. The Respondent's practice pursuant to his registered license was a prerequisite to issuance of his certified license.

3. All insurance and continuing education requirements for renewal of a license issued by the ECLB are set forth in Sections 489.515 and 489.517, Florida Statutes, as well as Rule 61G6-9.004, Florida Administrative Code, and are identical for certified and registered electrical contractors.

4. In March of 1999 the ECLB conducted a random audit of the insurance and continuing education requirements established in Rule 61G6-9.004, Florida Administrative Code, for the biennium commencing September 1, 1996, and terminating August 31, 1998. The Respondent was one of the licensees randomly chosen for this audit.

5. In response to the initial audit letter sent to the Respondent on March 17, 1999, the Respondent submitted insurance and continuing education documentation. This documentation reflects: no evidence of workers' compensation coverage or exemption for the audit period; no evidence of approved continuing education for the audit period; and no evidence of required liability insurance for the audit period. The continuing education documentation submitted by the Respondent was for the prior biennium, in February 1996.

6. On July 19, 1999, the ECLB forwarded the Respondent a follow-up letter, indicating that he was still lacking the documents enumerated in Finding of Fact Number 5. In response to this letter, the Respondent submitted documentation of the required liability insurance and of workers' compensation for May 1, 1997 through June 22, 1999.

7. At hearing, the Respondent produced a document similar to those previously provided to the DBPR documenting his workmen's compensation insurance from March 1, 1995 to May 1, 1997. The date of this document was the same as the date on the materials previously furnished to DBPR.

8. The Respondent testified that his insurance agent had faxed the requested documents to DBPR and sent copies to him. He received all of the documents substantiating his insurance from May 1, 1997 until June 22, 1999. His agent presumably forwarded or faxed the same documents to DBPR. DBPR produced all the documents except the one for the period of March 1, 1995 until May 1, 1997.

9. The Respondent provided enough information to raise a genuine question whether this document was lost by DBPR. It is concluded that it is as likely DBPR lost the record as it is the record was not sent.

10. There was no additional documentation of the required continuing education submitted at hearing.

11. Subsequent to the completion of the audit, the ECLB initiated a complaint with the Bureau of Consumer Services at DBPR. This complaint alleges that the Respondent failed to document required workers' compensation coverage or exemption for the entire audit period and failed to document required continuing education within the audit period.

12. The Respondent was initially issued citations for resolution of the alleged violations herein. Each of these citations provided for a $500 administrative fine. The continuing education violation was documented as DBPR case number 2000-08338 and the workers' compensation violation was documented as 2000-05654. The Respondent chose to dispute these citations, and as a result, this matter was handled pursuant to the provisions of Section 455.225, Florida Statutes.

13. The Respondent has failed to document completion of

    
    

    1. hours of board approved continuing education between September 1, 1996 and August 31, 1998.

14. The Respondent failed to obtain any board approved continuing education between September 1, 1996 and August 31, 1998.

15. In DBPR case number 2000-08338, the Petitioner incurred non-legal costs in the amount of $31.70.

16. In DBPR case number 2000-05654, the Petitioner incurred non-legal costs in the amount of $42.47. However, this cost may not be recovered.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case, pursuant to Section 120.569, Florida Statutes.

18. The Department of Business and Professional Regulation, Electrical Contractors Licensing Board has jurisdiction to enter the final order in this case pursuant to Chapters 455 and 489, Florida Statutes.

19. Pursuant to Subsection 489.515(3), Florida Statutes, licensees of the ECLB must have obtained liability insurance and workers compensation insurance or exemption prior to renewal of their certificate or registration.

20. Pursuant to Sections 489.510 and 489.515(3), Florida Statutes, the ECLB is authorized to require documentation of workers' compensation or exemption by random audit.

21. Pursuant to Section 489.517(3)(a), Florida Statutes, and Rule 61G6-9.004, Florida Administrative Code, licensees of the ECLB must provide proof of at least 14 classroom hours of continuing education during each biennium, as a condition of each renewal.

22. Pursuant to Section 489.515, Florida Statutes, and Rule 61G6-9.011, Florida Administrative Code, the ECLB is authorized to require documentation of continuing education by random audit.

23. The evidence presented raises legitimate questions whether the documentation for the period March 1, 1995 to May 1, 1997, was misplaced by DBPR. The Petitioner failed to meet its burden of proof by clear and convincing evidence that the Respondent failed to document workers' compensation coverage or exemption in response to the ECLB audit, thereby violating Sections 489.510 and 489.515(3), Florida Statutes, which constitutes a violation of Subsection 489.533(1)(o), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint.

24. The Petitioner has met its burden of proof by clear and convincing evidence that the Respondent failed to document completion of 14 hours of board approved continuing education for the September 1, 1996 through August 31, 1998, biennium in response to the ECLB audit, thereby violating Section 489.517(3)(a), Florida Statutes, which constitutes a violation of Section 489.533(1)(o), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint.

25. The disciplinary guidelines applicable to violations of Chapter 489 Part II are found in Rule 61G6-10.002, Florida

Administrative Code. Subsection (15)(d) of this rule provides the following penalty for a violation as alleged in Count II of the Amended Administrative Complaint, for failure to provide required proof of public liability insurance, required proof of workers' compensation insurance or exemption, or required proof of continuing education in response to an audit required by the board (Rules 61G6-5.008 and 61G6-9.011, Florida Administrative Code). First violation: $500 fine for each requirement to probation and fine, or suspension.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That a final order be entered imposing an administrative fine of $500 against the Respondent for Count II of the Amended Administrative Complaint. It is further recommended that the Respondent be required to pay the non-legal costs incurred by the Petitioner in both agency cases totaling

$31.70.

DONE AND ENTERED this 14th day of September, 2001, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2001.

COPIES FURNISHED:

Laura P. Gaffney, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

David Karably

Post Office Box 12 Earleton, Florida 32631

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1. days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-002543PL

Orders for Case No: 01-002543PL