STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTRICAL CONTRACTOR'S ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1670

)

MICHAEL T. LANG, Certificate ) No. 0000227, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on November 9, 1977 at Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Daniel J. Wiser, Esquire

Post Office Box 1752 Tallahassee, Florida 32302

For Respondent: Charles B. Hankel III, Esquire

2641 East Atlantic Blvd. Pompano Beach, Florida 32062

ISSUE

By Administrative Complaint filed September 2, 1977 the Florida Electrical Contractors' Licensing Board (FECLB) seeks to revoke, annul, withdraw or suspend the state electrical contractor's certification of Michael Lang who holds certificate No. 0000227, and Lang's right to do business thereunder. As grounds therefor it is alleged that Lang pulled the permits on 5 homes under the authority of his state license where work was to be done by Blue Streak Electric in which Lang had no interest. This was alleged to constitute violation of 468.190(2)(a), (b), (c), and (d)F.S.

Five witnesses, including Respondent, testified and three exhibits were admitted into evidence.

FINDINGS OF FACT

1. Michael T. Lang holds state electrical contractor license No. 0000227 and has been so licensed for about 3 years. He also holds Palm Beach and Broward County electrical contractor's licenses. Lang has never done any electrical contracting work under his state certificate outside Broward or Palm Beach counties.

2. Wayne Johnson is a journeyman electrician who has been employed by Lang since about 1973. Johnson worked on numerous houses for which Lang was the contractor and served as Lang's alter ego in many business functions such as ordering supplies, submitting proposals for bids, and signing checks.

   
   

3. In 1976 Lang encountered financial reverses due to the construction industry slump and was close to being closed down by IRS. It was difficult for him to obtain supplies with IRS attaching bank accounts and accounts receivable.

   
   

4. Johnson formed Blue Streak Electric to perform electrical repairs on weekends and evenings to supplement his dropping income from Lang. Blue Streak was not a qualified corporate electrical contractor although Johnson and Lang had discussed the concept of qualifying Blue Streak to be able to get supplies that Lang was finding increasingly difficult to do.

   
   

5. Before the necessary information had been submitted to qualify Blue Streak, Johnson bid on 5 house wiring jobs in Palm Beach County and obtained the contracts under Blue Streak Electric. The permits were pulled by Mike Lang Electric (Exhibits 1, 2, and 3) and under his county contractor's certificate number U8732. On the application for electrical permits (Exhibits l, 2, and 3) here involved, in the blank following "State and County Occupational License No." was entered "227".

   
   

6. No evidence was presented regarding the occupational license number of Lang but 227 is the number of his state certification.

   
   

7. Some two weeks after the work was commenced under the Blue Streak contract and was about fifty percent complete, the building inspectors stopped the work because Blue Streak was not a licensed electrical contractor.

   
   

8. Johnson had been, and was at the time, a salaried employee of Lang who was supervising the work done under these contracts.

   
   

9. Upon stopping of the work by the Palm Beach County inspectors these contracts were turned over to Mar Electric who employed Johnson to complete the work he had initially bid on. Mar visited the sites from time to time and received payment from the builder for the work performed. Lang received no income from these projects.

   
   

10. Lang was not an officer in Blue Streak and had no financial interest in Blue Streak at any time here involved. Upon learning that Johnson had entered the bids by Blue Streak and pulled the permits under Lang's license, Lang recognized that problems could ensue but this information was received only a couple of days before the work under Blue Streak's contract was stopped.

    
    

11. About the same time the work by Blue Streak was stopped by the inspector the IRS levied on Lang and closed his business.

    
    

12. The Palm Beach County licensing authority took action against Lang and, in April, 1977 suspended his county electrical contractor's license for one year on the same facts here involved.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Complaint filed herein, as noted above, charges a violation of 468.190(2)(a), (b), (c), and (d) F.S. Violation of subsections (f) and (g) were not alleged. Pertinent provisions of 468.190 F. S. provides:

    "(1) On its own motion or the verified written complaint of any person, the board may investigate the action of any contractor certified under this part and hold hearings pursuant to Chapter 120. However, when any complaint involves a contractor certified under this part for acts or omissions occurring in any area of the state which has a local board, the board shall forward the complaint to the municipality or county where the alleged violation occurred for

    its action. When no local board exists, the state hoard shall take jurisdiction. The board may take appropriate disciplinary action if the contractor is found to be

    guilty of, or has committed, any one or more of the acts or omissions constituting cause for disciplinary action set out herein or adopted as rules or regulations by the board.

    
    

    1. The following acts constitute cause for disciplinary action:

       1. Wilfully or deliberately disregarding and violating the applicable building code or laws of the state or any municipality or county thereof.

       2. Aiding or abetting any person to evade any provision of this part.

       3. Knowingly combining or conspiring with any person by allowing one's certificate to be used by any uncertified person with intent to evade the provisions of this part. If any certificate holder allows his certificate to be used by one or more companies without having any active participation in the operations or management of said companies, such act constitute prima facie evidence of an intent to evade the provisions of this part.

       4. Acting in the capacity of a contractor under any certificate issued hereunder except in the name of the certificate holder as set forth on the issued certificate or in accordance with the personnel of the certificate holder as set forth in the application for the certificate or as later changed as provided in this part.

          * * *

          1. Disciplinary action by any municipality or county, which action shall be reviewed by the board before the board takes any disciplinary action of its own.

          2. Failing in any material respect to comply with the provisions of this part."

14. Palm Beach County officials discovered the apparent improper use of Lang's license and, following investigation, took appropriate action against this license. Sometimes during the period between the discovery of the impropriety and action to suspend Lang's license FECLB was made aware of the facts. After Palm Beach County had suspended Lang's license FECLB filed the administrative complaint apparently alleging the identical facts that form the basis of the county's action.

    
    

15. Section 468.190(1) F.S. above quoted provides that when allegations of impropriety against a licensee are made in a county which has a local board the FECLB shall forward the complaint to the county for its action. Where no local board exists FECLB shall take jurisdiction Here the county took jurisdiction, held a hearing, and suspended Lang's license for one year. Based on these same facts the FECLD now seeks to take additional action. This smacks of double jeopardy and is not intended by subsection (1) above quoted.

    
    

16. If the FECLB can take action on the charges here involved after the local board has taken action, they could likewise bring the same charges against a licensee who has been acquitted by the local board.

    
    

17. While the constitutional provision against double jeopardy does not apply to administrative proceedings, the rationale behind this constitutional provision should be considered. License revocation proceedings are penal in nature. 1 Fla. Jur. Adm. Law 102. Consecutive trials (or hearings) violate due process when such a course of action entails fundamental unfairness. 9 Fla. Jur. Crim. Law 191. Due process requires that the state not be permitted to attempt "to wear the accused out with a multitude of accumulated trials." Id.

    
    

18. Section 468.190 (1) F.S. certainly does not contemplate two actions, one at local level and the second at state level, each time a licensee violates provisions of the Electrical Contractors Licensing Law. Subjecting a licensee to two hearings for the same offense violates due process.

1. It is to be noted that state certification allows an electrical contractor to operate in any county of the state, while a county license limits the contractor to the county in which he is so licensed. Accordingly an electrical contractor holding both a county license and state certification could have disciplinary action against his county license and still be able to operate in all other counties of the state. However subsection 468.190(2)(f)

   F.S. above quoted provides as an additional ground for disciplinary action against state certification, "Disciplinary action by any municipality or county." This contemplates and would be consonant with subsection (1) above referred to in authorizing FECLB to suspend or revoke state certification following action taken by a county to suspend or revoke county contracting authority. Here Respondent was not charged with a violation of subparagraph (2)(f) therefore action against his state certification cannot be taken under this authority.

   
   

2. An additional question presented in this case was whether Respondent was working under his state certification, as alleged in the complaint, when he pulled the permits for the contracts here under consideration. Exhibits 1, 2, and 3 clearly show the permits were pulled under authority of Lang's Palm Beach County license. That is the license number used to pull the permit and the only authority Lang needed to pull these permits unless the county license merges with the state certificate as a matter of law. No one here involved has so contended.

3. While the permits show Lang's state certification in the space for his occupational license, this is not the space in which his authority, as an electrical contractor, to pull the permits is shown. In the event the local contractor's license was not registered with FECLB as provided by Section 468.1831 F.S., Lang could not legally pull a permit pursuant to his license and his certification would be subject to disciplinary action pursuant to Section 468.190(2)(g) F.S. However he was not charged with a violation of subsection (2)(g). On the other hand when Palm Beach County took action to suspend Lang's county license this action apparently was predicated upon Lang pulling the permits pursuant to a valid county license.

   
   

4. Attached to the MEMORANDUM submitted by Petitioner following the hearing is an affidavit to the effect that Lang's local license was not registered with FECLB. At this stage of the proceedings this "evidence" is not admissible and will not be considered. Since a copy of the Memorandum was supplied to the Respondent, this is not an ex parte communication pursuant to Section 120.66 F.S.

   
   

5. One issue raised in Respondent's Memorandum and Argument filed November 23, 1977 goes to the crux of the charges that Lang's license was used to pull permits for a non-qualified corporation in which he exercised no operational control. Although the conclusions reached did not consider this issue, the only evidence presented at this hearing on this issue was that Lang did supervise the work being done by Johnson; and, during this period, Johnson was on Lang's payroll. Predicated upon the evidence presented at the county hearing that board obviously found Lang pulled a permit for a corporation in which he did not exercise operational control. The conclusions below are based on the factors noted and it is not necessary to consider whether the evidence was sufficient to find Lang guilty of violating Section 460.190(2)(c) F. S. as alleged.

   
   

6. From the foregoing it is concluded that Sections 468.190(1) F.S. precludes Petitioner from taking action against Respondent under allegations that he violated subsections 2(a), (b), (c), and (d) of this section. Since Respondent was not charged with violation of subsections (f) and (g) he cannot be found guilty under these provisions of the statutes.

   
   

7. It is further concluded that, from the evidence presented at the hearing, Respondent was not issued the permits in question pursuant to his state certification as alleged. It is therefore,

RECOMMENDED that the Administrative Complaint be dismissed.

DONE and ENTERED this day of December, 1977, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Carlton Building

2009 Apalachee Parkway

Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1977.

COPIES FURNISHED:

Daniel J. Wiser, Esquire

P. O. Box 1752

Tallahassee, Florida 32302

Charles B. Hankel III, Esquire 2641 E. Atlantic Blvd.

Pompano Beach, Florida 32062

Docket for Case No: 77-001670

Orders for Case No: 77-001670