STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID F. RHEAUME,

Petitioner,

vs.

ELECTRICAL CONTRACTORS' LICENSING BOARD,

Respondent.

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) Case Nos. 06-2316

) 06-2317

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RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Lawrence P. Stevenson, the assigned Administrative Law Judge of the Division of Administrative Hearings, on September 7 and November 9, 2006, in Fort Myers, Florida.

APPEARANCES

For Petitioner: H. Andrew Swett, Esquire

Knott, Consoer, Ebelini, Hart & Swett, P.A.

1625 Hendry Street

Fort Myers, Florida 33901

For Respondent: Reginald D. Dixon, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application to qualify two additional business entities should be granted.

PRELIMINARY STATEMENT

By separate Notices of Intent to Deny issued April 27, 2006, the Electrical Contractors' Licensing Board (the Board) advised Petitioner that his applications to qualify two additional business entities were denied, based on Petitioner's failure to demonstrate that he possessed the capacity and intent to adequately supervise both of the additional entities and the entities for which he was already the qualifier. Petitioner timely requested an administrative hearing regarding that preliminary determination. On June 29, 2006, both cases were transferred to the Division of Administrative Hearings to conduct evidentiary proceedings. By order dated July 13, 2006, the cases were consolidated for hearing.

The hearing in this matter was initially convened on September 7, 2006. At that time, Petitioner had only recently retained counsel, whose initial review of the case led him to raise new issues that the Board's counsel agreed merited a continuance for further discovery and possible settlement. The hearing was reconvened and completed on November 9, 2006.

Petitioner testified on his own behalf. Petitioner's Exhibits numbered 3 through 5 were admitted into evidence. Petitioner's Exhibit numbered 3 was the transcript of Petitioner's application request hearing before the Board on March 23, 2006. Respondent presented no witnesses.

Respondent's Exhibit numbered 1 was Petitioner's application packet for Dolphin Electric of SW Florida, Inc. (DOAH Case No. 06-2316), and Exhibit numbered 2 was Petitioner's application packet for Mill Electrical Contractors, Inc. (DOAH Case No. 06- 2317) were admitted into evidence.

The Transcript of the proceeding was filed on December 13, 2006. Both parties timely submitted Proposed Recommended Orders on December 26, 2006. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, David Rheaume, has been an electrician since about 1960. Petitioner is a certified electrical contractor, holding Florida license number EC 13003139.

2. Petitioner currently serves as the primary qualifier for two companies, David's Electric Service, Inc. (David's Electric), in Fort Myers, and Primary Electric of Southwest Florida, Inc. (Primary Electric), in Cape Coral. As the primary qualifier for David's Electric and Primary Electric, Petitioner is responsible for the supervision of all operations of the business organization, for all field work at all sites, and for financial matters, both for the organization in general and for each specific job. § 489.522(1)(a), Fla. Stat. (2006).

3. David's Electric is wholly owned and operated by Petitioner. He is the sole officer and employee. On average,

   Petitioner works three-to-four hours per day, five or six days per week, doing mostly service work and upgrades. He gets most of his work from the local pennysaver-type advertising circular, and his schedule depends on the number of calls he receives from customers. He may work for six hours on one day, and not at all on the next. Petitioner considers himself semi-retired, and no longer undertakes new home installations. Petitioner is able to make his own flexible schedule as the owner/operator of David's Electric, and believes that he will be able to supervise the operations of the additional entities for which he seeks to act as qualifier.

4. Primary Electric performs electrical service work and the wiring of newly constructed houses. Petitioner spends a "couple hours a week at the most," supervising the electrical contracting work of Primary Electric. The owner/operator of Primary Electric calls Petitioner when a job is ready for inspection. Petitioner then goes to the job site and checks to make sure the job has been done properly before the county inspector arrives. The owner/operator consults Petitioner if he has a problem understanding the blueprints on a job.

5. The staff of Primary Electric consists of the owner/operator and two helpers. Petitioner is officially the vice president and owns ten percent of the company. He serves in a consulting capacity, and performs no physical work for

   Primary Electric. At the hearing, Petitioner identified the owner/operator of Primary Electric as "Don," and could not, with confidence, recall "Don's" surname. Don supervises the business on a day-to-day basis. Petitioner knew that Don's wife "signs all the checks," but was not certain whether she has an official position in the company. The checkbook and financial records are forwarded to the office of Petitioner's CPA, where Petitioner checks them.

6. Don, the owner/operator of Primary Electric, is not a licensed electrical contractor. Petitioner allows Don to hire and supervise the helpers who work on Primary Electric's job site. Petitioner readily conceded that he knows nothing about the hiring or qualifications of the helpers, and that he relies on Don to address any problems with faulty work performed by the helpers.

7. Primary Electric has pulled permits and performed electrical contracting jobs without Petitioner's prior knowledge. Petitioner testified that he allowed Don to go to local building departments and pull permits for electrical contracting jobs without prior consultation with Petitioner, because "I have that much faith in him."

8. Petitioner acknowledged that on some smaller jobs, such as additions or service work, the owner/operator of Primary Electric has finished the jobs and gone through final

   inspections without ever notifying him. In response, Petitioner told Don to "at least call me."

9. Petitioner applied to serve as the primary qualifier for Dolphin Electric of SW Florida, Inc. (Dolphin Electric), a start-up company based in Cape Coral. Vincent Sica is the president of Dolphin Electric, and Petitioner is the vice president and ten percent owner. Mr. Sica is a friend of Petitioner, and formerly worked for Petitioner at David's Electric. Mr. Sica was denied an electrical contractor's license by the Board, then asked Petitioner to serve as his qualifier, thereby allowing Dolphin Electric to work in the field of electrical contracting.

10. Dolphin Electric, if approved as an additional business under Petitioner's license, would operate as an electrical contracting business focusing primarily on wiring new custom houses built by Mr. Sica's brother, who is a general contractor. Mr. Sica and his son would perform the work. Petitioner will perform no physical work for Dolphin Electric.

11. Petitioner intends to supervise Dolphin Electric in the same manner that he supervises Primary Electric, including allowing Mr. Sica to pull permits for electrical jobs without first consulting Petitioner. According to Petitioner, Mr. Sica was an electrician in New Jersey and is very qualified. Petitioner stated that he would likely supervise Dolphin

    Electric a little more closely, if only, because he and Mr. Sica are friends and spend a lot of time together.

12. Petitioner applied to serve as the primary qualifier for Mill Electrical Contractors, Inc. (Mill Electric), a start- up company based in Fort Myers. Terry Gaschk is the president of Mill Electric, and Petitioner is the vice president and ten percent owner. Mr. Gaschk is a friend of Petitioner, and worked for Petitioner at David's Electric during a busy time. Although he has only known Mr. Gaschk for one year, Petitioner testified that Mr. Gaschk is "like a brother" to him and is a better electrician than Petitioner. When Mr. Gaschk wanted to start his own company, Petitioner was willing to serve as his qualifier.

13. Mill Electric, if approved as an additional business under Petitioner's license, would probably operate as an electrical contracting business focusing primarily on wiring newly constructed houses. Petitioner was not sure of

    Mr. Gaschk's intentions, because of the current softness of the residential construction business. Petitioner guessed that Mill Electric would stay a one-man operation doing service jobs until the market improves.

14. Petitioner intends to supervise Mill Electric in the same manner that he supervises Primary Electric, including

    allowing Mr. Gaschk to pull permits for electrical jobs without first consulting Petitioner.

15. Petitioner did not demonstrate intent to adequately supervise the operations of the proposed additional entities, Dolphin Electric and Mill Electric. At Petitioner's application request hearing, the Board's chief concern was the appearance that Petitioner was engaged in a "license selling" scheme with his friends. At the de novo hearing before the undersigned, Petitioner did little to put this concern to rest.

16. Petitioner's intent is to continue working part-time for his own company, and to allow his friends to run the day-to- day operations of the two start-up companies, including the hiring and supervision of employees, the pulling of permits for electrical work, and the performance of that work without the direct supervision of a certified electrical contractor. In general, Petitioner would be consulted when there is a problem with the work, or when his presence is required for an inspection.

17. The undersigned does not find that Petitioner had any conscious bad intentions in making his applications. Petitioner sincerely believes that Mr. Sica and Mr. Gaschk are at least as proficient in the field as is he, and is confident enough, in his opinion, to risk his license on their behalf. However, Petitioner's casual manner of supervising the work of his

    friends, coupled with the sheer volume of supervisory work that he proposed to undertake for a total of three companies plus his own, caused reasonable doubts in the mind of the Board.

    Unfortunately, Petitioner was unable to dispel those doubts in this proceeding.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

19. The Board is the agency charged with the responsibility of licensing and regulating electrical contractors, pursuant to Chapter 489, Part II, Florida Statutes (2006).

20. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino

    v. Department of Health and Rehabilitative Services, 348 So. 2d

    
    

    349 (Fla. 1st DCA 1977). In these consolidated proceedings, the burden of proof is on Petitioner to show by a preponderance of the evidence that he meets the qualifications set forth in

    Section 489.521(8) and Subsection 489.522(1)(a), Florida Statutes (2006), to qualify the two additional businesses.

21. Section 489.521(8), Florida Statutes, provides:

    
    

    Each qualifying agent shall pay the department an amount equal to the original fee for certification or registration to qualify any additional business organizations. If the qualifying agent for a business organization desires to qualify additional business organizations, the board shall require him or her to present evidence of supervisory ability and financial responsibility of each such organization.

    Allowing a licensee to qualify more than one business organization shall be conditioned upon the licensee showing that the licensee has both the capacity and intent to adequately supervise each business organization in accordance with s. 489.522 (1). The board shall not limit the number of business organizations which the licensee may qualify except upon the licensee's failing to provide such information as is required under this subsection or upon a finding that such information or evidence as is supplied is incomplete or unpersuasive in showing the licensee's capacity and intent to comply with the requirements of this subsection. A qualification for an additional business organization may be revoked or suspended upon a finding by the board that the licensee has failed in the licensee's responsibility to adequately supervise the operations of that business organization in accordance with s. 489.522 (1). Failure of the responsibility to adequately supervise the operations of a business organization in accordance with s. 489.522 (1) shall be grounds for denial to qualify additional business organizations. (Emphasis added)

22. Subsection 489.522(1)(a), Florida Statutes, provides:

    
    

    A qualifying agent is a primary qualifying agent unless he or she is a secondary qualifying agent under this section. All primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job.

    
    

23. Petitioner failed to present sufficient evidence to demonstrate that he has the capacity and intent to adequately supervise the additional business organizations in accordance with Subsection 489.522(1)(a), Florida Statutes, as required by Section 489.521(8), Florida Statutes (2006).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that:

A final order be entered denying Petitioner's applications to qualify Dolphin Electric of SW Florida, Inc., and Mill Electrical Contractors, Inc. as additional business entities.

DONE AND ENTERED this 8th day of March, 2007, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 8th day of March, 2007.

COPIES FURNISHED:

Reginald D. Dixon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Howard Andrew Swett, Esquire Knott, Consoer, Ebelini,

Hart & Swett, P.A.

1625 Hendry Street, Suite 301 Fort Myers, Florida 33901

Anthony B. Spivey, Executive Director Electrical Contractors' Licensing Board 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Josefina Tamayo, General Counsel Department of Business and

Professional Regulations 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 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: 06-002317

Orders for Case No: 06-002317