STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

IVAN MCKINLEY,

Respondent.

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) Case No. 07-2762

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was convened in this cause on July 26, 2007, in Inverness, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202 For Respondent: No Appearance

STATEMENT OF THE ISSUE

What if any, disciplinary action may be taken against Respondent based on alleged violations of Florida Statutes Section 489.531(1) (practicing electrical contracting or advertising one's self or business organization as available to

engage in electrical or alarm system contracting without being certified or registered), and Section 455.227(1)(q) (engaging in the practice of unlicensed electrical contracting after previously being issued an Order to Cease and Desist from the unlicensed practice of electrical contracting.)

PRELIMINARY STATEMENT

On March 15, 2007, Petitioner filed an Administrative Complaint alleging that Respondent had violated Florida laws regulating the practice of unlicensed electrical contracting. The Administrative Complaint charged Respondent as set out above.

Respondent timely elected a formal administrative hearing, and the case was referred to the Division of Administrative Hearings on or about June 20, 2007.

The hearing was "noticed" for July 10, 2007, but Respondent did not appear for hearing. After waiting 30 minutes, Respondent had neither phoned nor appeared.

At hearing, Petitioner presented the oral testimony of Amy Becker, Dennis Himmel, Craig Zeedick, and Sharon Philman.

Petitioner's exhibits one through nine were admitted in evidence. At the conclusion of Petitioner's case-in-chief, Respondent had still not appeared. The record was then closed.

A Transcript was filed on August 8, 2007. Petitioner timely filed a Proposed Recommended Order on August 16, 2007,

which proposal was accompanied by a Notice of Filing Respondent's Response to Petitioner's First Request for Admissions and the Responses.

FINDINGS OF FACT

1. At all times material hereto, Respondent was not licensed nor had he ever been licensed to engage in electrical contracting in the State of Florida.

2. Mr. George Hammond lives in Inverness, Florida in a single family dwelling with a detached garage. The house is serviced with a water well and electrical pump.

3. On July 25, 2006, Mr. Hammond notified a long-time friend, Dennis Himmel that he had problems with his well and could not get water into his home. Mr. Himmel temporarily ran a wire between the well and garage so Mr. Hammond could get water, and suggested Mr. Hammond hire an electrician to do the permanent work.

4. A few days later, Mr. Hammond told his friend, Craig Zeedick, that his well had been hit by lightening and someone was fixing it. Mr. Zeedick went to Mr. Hammond's house and observed Respondent kneeling down and making an electrical connection with the junction box. Respondent had stripped off the wire connections and made the wire nut connection. A boy was with Respondent, and the boy was burying an electrical cable to the well. The cable in the ground had no tubing or

   protection around it. At Mr. Hammond's request, Mr. Zeedick counted out approximately $947.00 in cash to Respondent for the electrical work.

5. Sometime in August 2006, Mr. Himmel observed the work done at Mr. Hammond's home. He phoned Respondent to complain because the wire from the garage to the well was buried only four inches underground with no conduit (protective covering) over the wire into the garage. Respondent returned and covered the wire with conduit but then the pump did not work. Later, Respondent corrected the wire box connection, blaming the problems on Mr. Himmel. At some point in these machinations, Respondent succeeded in flooding Mr. Hammond's garage with water.

1. Amy Becker, a license inspector with the Citrus County Building Division performed an investigation of the electrical contracting work done by Respondent at Mr. Hammond's residence, and took photographs. At that time, Mr. Hammond pointed out electrical wiring running from the well to the garage, and

   Ms. Becker observed there was a conduit and some plastic tubing.

   
   

2. Ms. Becker then checked Respondent's licensing status, and found him to be unlicensed as an electrical contractor by either the State or Citrus County. She notified Petitioner, as the State licensing agency.

3. On December 13, 2006, Ms. Becker cited Respondent for unlicensed contracting in wiring the water well pump at

   Mr. Hammond's residence. Respondent appeared before the County Board on December 13, 2006, and signed the citation signifying he wanted an administrative hearing. On January 24, 2007, Respondent, represented by counsel, was present for testimony before the Board, and the Board upheld the citation against Respondent. Respondent paid the citation on May 29, 2007.

4. Respondent admitted to Petitioner's Investigator, Sharon Philman, during a telephone interview, that he had run wire from Mr. Hammond's garage to the well pump, for which work he charged approximately $940.00. On or about February 13, 2007, Petitioner issued a Cease and Desist Order against Respondent. The instant complaint/case followed.

5. Petitioner put on no evidence concerning a prior 2005 case against Respondent.1/

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

7. Petitioner, the Department of Business and Professional Regulation, is the state agency charged with regulating the practice of unlicensed construction and

   electrical contracting, pursuant to Chapters 455 and 489, Florida Statutes.

8. Petitioner has the duty to go forward and the burden to prove by clear and convincing evidence all the allegations against Respondent, pursuant to the statutes cited in the Administrative Complaint, Section 120.57(1)(h), Florida Statutes; Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

9. Section 489.531(1), Florida Statutes (2006), cited in the Administrative Complaint, provides, in pertinent part, as follows:

   1. A person may not

      
      

      1. Practice contracting unless the person is certified or registered;

         
         

      2. Use the name or title "electrical contractor" or "alarm system contractor" or words to that effect, or advertise himself or herself or a business organization as available to practice electrical or alarm system contracting, when the person is not then the holder of a valid certification or registration issued pursuant to this part.

      
      

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      (12) "Electrical Contractor" or "unlimited electrical contractor" means a person who conducts business in the electrical trade field and who has the experience, knowledge, and skill to install, repair, alter, add to, or design, in compliance with law, electrical wiring, fixtures, appliances,

      apparatus, raceways, conduits, or any part thereof, which generates, transmits, transforms, or utilizes electrical energy in any form, including the electrical installations and systems within plants and substations, all in compliance with applicable plans, specifications, codes, laws and regulations. The term means any person, firm, or corporation that engages in the business of electrical contracting under an express or implied contract; or that undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid to engage in the business in electrical contracting; or that does itself or by or through others engage in the business of electrical contracting.

      
      

10. Section 455.227(1)(q), Florida Statutes (2006), cited in the Administrative Complaint, provides, in pertinent part, as follows:

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

       
       

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       (q) Violating any provision of this chapter, the applicable professional practice act, rule of the department or the board, or a lawful order of the department or the board, or failing to comply with a lawfully issued subpoena of the department.

       
       

11. Section 455.227(2), Florida Statutes (2006), not cited in the Administrative Complaint, provides, in pertinent part:

    When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or

    a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:

    
    

    1. Refusal to certify, or to certify with restrictions, an application for a license.

       
       

    2. Suspension or permanent revocation of a license.

       
       

    3. Restriction of practice.

       
       

    4. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       
       

    5. Issuance of a reprimand.

       
       

    6. Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.

    
    

12. Petitioner has proven by clear and convincing evidence the charge contained in Count I of the Administrative Complaint: that Respondent violated Section 489.531(1), Florida Statutes, under sub-paragraph (a), by practicing electrical contracting without a certification or registration. Without possessing an electrical contracting license or certification, Respondent performed electrical contracting work at a residence when he permanently wired an electrical well pump to the junction box in

    Mr. Hammond's garage; buried the well pump wire in the ground; and installed a conduit over the same wire inside the garage.

13. An appropriate discipline for the violation proven in Count I would be for the Department of Business and Professional Regulation to impose an administrative penalty of $2,500.00, which is more than three times the amount paid by the citizen to the unlicensed contractor.

14. Apparently, Petitioner charged Count II (engaging in the practice of unlicensed electrical contracting after previously being issued a Cease and Desist Order in D.B.P.R. Case No. 2005-031846), with the intent of increasing the penalty for Count I to the statutory maximum of $5,000.00. However, no evidence of Count II was presented at hearing.2/ Therefore, Respondent cannot be found to have violated Section 455.227(1)(q), as charged, and the higher penalty prayed-for is inappropriate.

15. Petitioner also has put on no evidence with regard to costs and attorney's fees. Therefore, the prayer for same contained in its Proposed Recommended Order cannot be ordered.3/

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation enter a final order:

1. Finding Respondent guilty of having violated Section 489.531(1)(a), Florida Statutes, on one occasion, and assessing Respondent an administrative fine in the amount of $2,500.00 therefor, as permitted by Section 455.228(2), Florida Statutes.

2. Finding Respondent not guilty of having violated Section 455.227(1)(q) as pled in Count II of the Administrative Complaint herein.

DONE AND ENTERED this 19th day of September, 2007, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 19th day of September, 2007.

ENDNOTES

1/ Petitioner has proposed a finding of fact that Respondent was previously issued a Notice and Order to Cease and Desist in

D.B.P.R. Case No. 2005-031846, for offering to perform electrical contracting work in violation of Section 489.531(1), Florida Statutes. The proposal was based solely upon Respondent's Responses to Petitioner's First Request for Admission, No. 10, which was not filed with DOAH until after the record had closed. (See Preliminary Statement.) Under these circumstances, the late-filing of this material does not

constitute evidence and cannot be used for a finding of fact. The appropriate way to present such Admissions, if they have not been filed and recognized by a prior order, is to have them admitted as an exhibit at hearing or to read them into the record during the formal hearing.

2/ See n. 1.

3/ To recover attorney's fees and costs a Petitioner must plead them in the Administrative Complaint and prove them up at the final hearing. An alternative to proving them up at hearing is to move the ALJ to retain jurisdiction of this issue, pending a Recommended Order on the merits. Neither method was utilized here.

COPIES FURNISHED:

Sorin Ardelean, Esquire Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ivan McKinley 3100 Possum Court

Inverness, Florida 34452

Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 07-002762

Orders for Case No: 07-002762