STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERIC R. COPENHAGEN, t/a )

ARIES ELECTRIC, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-1463

) STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) ELECTRICAL CONTRACTORS' )

LICENSING BOARD )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on April 1, 1980, in Miami, Florida. Thereafter, the parties were granted leave to file Proposed Recommended Orders. Respondent submitted a Proposed Recommended Order which was considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: Patricia R. Gleason, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

For Respondent: Alan B. Oppenheimer, Esquire

1515 Northwest 7th Street Miami, Florida 33125

ISSUE

The issue posed for decision herein is whether or not the Respondent, State of Florida, Department of Professional Regulation, Electrical Contractors Licensing Board, erred and/Dr abused its discretion in its denial of Petitioner's application for statewide certification on the basis that it failed to demonstrate that it possessed adequate financial responsibility.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the Proposed Recommended Order and the entire record compiled herein, the following relevant facts are found.

2. On March 19, 1979, Petitioner, Eric Copenhagen, t/a Aries Electric, filed an application with the Electrical Contractors' Licensing Board (herein called the Respondent) for statewide certification as an electrical contractor. (Respondent's Composite Exhibit 1.) On May 17, 1979, the Respondent denied Petitioner's application on the grounds that the qualifying agent, Eric R. Copenhagen, did not show financial responsibility and the business entity, Aries Electric, Inc., did not show financial responsibility and sufficient business and credit reputation as is set forth and required pursuant to Section 463.184(3), Florida Statutes (1977). l/ (Testimony of Board Member Kenneth Dunworth.)

   
   

3. The Respondent denied Petitioner's application for certification based on Petitioner's response to Question 17(b) on the application to the effect that there was outstanding at the time of the demise of Kahn-Copenhagen Electric, Inc. a sum due and owing Consolidated Electric Company of $49,000.00; a credit report which reflected a tax lien in the amount of $52,440.00, which lien became effective approximately August 3, 1973, and remains unpaid; and a lien due and payable of $73.00 effective May 5, 1973. (Respondent's Exhibits 2, 3 and 4.)

   
   

4. During the hearing, the evidence adduced established that the approximately $49,000.00 obligation owed to the supplier, Consolidated Electric, Inc., stems from a Housing and Urban Development (HUD) project undertaken by Petitioner's predecessor corporation, Kahn-Copenhagen Electric, Inc., and that the amount owed to the supplier was paid by the General Contractor as a result of litigation between petitioner and the. General Contractor. The evidence reveals that the lien which was outstanding at the time that the Board reviewed Petitioner's application for certification which was due to the Florida Department of Commerce has now been satisfied. There remains, however, outstanding obligations in the form of a tax lien due the Internal Revenue Service in the amount of approximately $53,000.00. The Petitioner contends that he was unaware of the existence of the tax lien and that there had been an agreement worked out between the Internal Revenue Service and himself to satisfy the outstanding amounts due and owing the Internal Revenue Service which grew out of the dispute between the supplier, the General Contractor and Kahn- Copenhagen on the HUD project. The records, however, do not reflect that these outstanding tax obligations have been satisfied at the time of the hearing. (Petitioner's Composite Exhibit 1.) In such circumstances, it appears that the Board, at the time that it reviewed Petitioner's application for certification, acted within its discretion in denying the Petitioner's application for certification due to an absence of showing of financial stability and/or responsibility. (Section 468.184(3), Florida Statutes.) I shall so recommend.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

6. The parties were duly noticed pursuant to the notice provision of Chapter 120, Florida Statutes.

   
   

7. The authority of the Respondent is derived from Chapter 468, Florida Statutes (l977). 2/

   
   

8. Competent and substantial evidence was offered to establish that the Board properly fulfilled its, obligation of investigating the financial responsibility and credit and business reputation of the Respondent and the

qualifying agent as is reguired in Section 468.184(3), Florida Statutes (l977). In so doing, the evidence demonstrates that the Board properly denied the Petitioner's application since it failed to demonstrate to the Board evidence that it possessed the requisite showing of adequate financial responsibility.

RECOMMENDATION

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

RECOMMENDED:

That the Respondent (Board's) denial of the Petitioner's application for certification be SUSTAINED. 4/

ENTERED this 10th day of June, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Collins Building

Room 101

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th of June, 1980.

ENDNOTES

1/ Now codified as Section 489.511(3), Florida Statutes (1979). 2/ Presently, this section is codified in Chapter 489, Part

II, Florida statutes (1979).

3/ Presently codified as Section 489.511(3), Florida Statutes (1979).

4/ This recommendation is made based on the evidence presented to the Board at the time that it reviewed the application. This recommendation is not intended to foreclose the applicant from resubmitting to the Board for further consideration of its application, evidence which would establish that it meets and otherwise fulfills the financial responsibility criteria which are set forth in former Section 486.184(3), Florida Statutes. (Presently Section 489.5511(3), Florida Statutes [1979].)

COPIES FURNISHED:

Patricia R. Gleason, Esquire Alan B. Oppenheimer Assistant Attorney General 1515 Northwest 7th Street Department of Legal AfSairs Miami, Florida 33125

The Capitol, LL04 Tallahassee, Florida 32301

Allen R. Smith, Jr., Executive Nancy Kelley Wittenberg, Director Department of Professional

Electrical Contractors Regulation

Licensing Board 2009 Apalachee Parkway

2009 Apalachee Parkway Tallahassee, Florida 32301

Tallahassee, Florida 32301

Docket for Case No: 79-001463

Orders for Case No: 79-001463