STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS' LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-701

)

FLOYD WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 4, 1983 in Bradenton, Florida.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Thomas M. Gallen, Esquire

701 11th Street West Bradenton, Florida 33505

BACKGROUND

By administrative complaint filed on December 17, 1981, Petitioner, Department of Professional Regulation, Electrical Contractors' Licensing Board, seeks to take disciplinary action against the registered electrical contractor license of Floyd E. Williams. In brief, it is alleged that on or about August 4, 1980, Respondent obtained an electrical permit from Manatee County to make an electrical installation on a duplex in Bradenton, Florida; that an unlicensed contractor performed the actual work; and that by reason of this Respondent aided or abetted an unlicensed person to evade the law [s. 489.533(1)(j)] and knowingly conspired with an unlicensed person by allowing his registration to be used by an unlicensed person in violation of the law [s. 489.533(1)(k)

Respondent disputed the above allegations and requested a formal hearing to contest the charges pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by Petitioner on March 10, 1982 with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated April 6, 1982 the final hearing was scheduled for July 2, 1982 in Bradenton, Florida.

On June 9, 1982 Petitioner filed a motion to consolidate this case with Case No. 82-1235 which allegedly stemmed from the same construction project. On

June 17, 1982 Petitioner filed a motion for continuance of the final hearing; the latter motion was granted by order dated June 24, 1982. On July 26, 1982 Petitioner moved to transfer Case No. 82-701 from Hearing Officer Caleen to Hearing Officer Rigot. This motion was granted by order dated July 30, 1982. A second motion to consolidate Case Nos. 82-701 and 82-1235 was filed by Petitioner on July 27, 1982 and remains pending. 1/

The final hearing was thereafter rescheduled to January 24, 1983 in Bradenton, Florida. Because the parties did not file a prehearing stipulation, the hearing was cancelled and later rescheduled to May 4, 1983 at the same location. On May 2, 1983 the instant case was reassigned to the undersigned hearing officer.

At the final hearing Petitioner presented the testimony of Inez Coleman, Reid L. Van Wormer, James W. Newton, Frank Governale, James W. McGuirt, Robert Boyd and Roberta Langford. It also offered Petitioner's Exhibits 1-8; all were received in evidence. Respondent testified on his own behalf and presented the testimony of Rosario Davi.

The transcript of hearing was filed on May 25, 1983. Proposed findings of fact and conclusions of law were filed by Respondent and Petitioner on May 11 and June 6, 1983 respectively and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether Respondent's electrical contractor's license should be disciplined for the alleged violations set forth in the administrative complaint.

Based upon all the evidence, the following Findings of Fact are determined: FINDINGS OF FACT

1. At all times material hereto, Respondent, Floyd E. Williams, held registered electrical contractor's license No. ER 0006350 issued by Petitioner, Department of Professional Regulation, Electrical Contractors' Licensing Board.

   
   

2. On or about March 24, 1980 James W. Newton, a licensed building contractor, entered into a construction contract with Frank and Joyce Governale to construct a duplex at 704-59th Avenue East in Bradenton, Florida for a price of $48,000.

   
   

3. Newton subcontracted out all phases of the construction, including the electrical work. In attempting to find someone who could do the electrical work, he contacted Rosario Davi, a local builder, who introduced him to Respondent. After visiting the job site, Williams orally agreed to do the electrical work on the duplex and pulled a permit with Manatee County on April 24, 1980. Williams was reimbursed by Newton for the cost of the permit. Under their agreement, Williams was to do the electrical work after the construction on the duplex had reached a certain stage.

   
   

4. Before he was contacted by Newton to begin the work, Williams, who is also a preacher, took a church-sponsored vacation and was gone from Bradenton for approximately six or seven weeks. While he was gone, the electrical work was performed by Guy Graser. Graser held no licenses from the state or county. It was not disclosed who-hired Graser or instructed him to perform the work,

   although Graser told Mr. Governale that he was working for Newton. In any event, Williams did not know Graser or authorize him to do the work under his permit. Newton never contacted Williams after he returned from his vacation and consequently Williams did not return to the job site.

   
   

5. The duplex was inspected by a Manatee County electrical inspector on September 29, 1980 and given final approval for occupancy. The Governales moved in a short time later.

   
   

6. After moving in, Mr. Governale experienced a fire as a result of an undersized aluminum wire. He then contacted Manatee County to voice a complaint. This prompted a County inspection of his premises in June, 1981. Governale also wrote a letter to the County in July, 1981 detailing his grievance. The reinspection in June, 1981 resulted in a number of building code violations being detected. Since the permit had been issued in Williams' name, the County contacted Williams who promptly corrected all deficiencies to the Governale's satisfaction. Williams was never paid for this work by Newton. Williams steadfastly denied to all parties that he had performed the original work.

   
   

7. It is not unusual for a general contractor to replace a licensed subcontractor with another subcontractor after a permit has been issued to the first. In those cases the County simply voids the old permit and issues a new permit to the second contractor. The original subcontractor is generally advised of this by telephone from the County official.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. Respondent is charged with aiding and abetting an unlicensed person to evade the electrical contracting law in violation of Subsection 489.533(1)(j) , Florida Statutes, and with knowingly conspiring with an unlicensed person by allowing his registration to be used by an unlicensed person with the intent to evade the provisions of the law in contravention of Subsection 489.533(1)(k) , Florida Statutes. Both charges stem from Guy Graser, an unlicensed person, performing the electrical work on the Governale job when Williams had actually pulled the permit. After the record had closed Petitioner conceded in its proposed order that no violation of Subsection 489.533(1)(k) had occurred, and accordingly that portion of the complaint need not be addressed.

   
   

10. Because the proceeding is penal in nature, Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980) and Respondent's license is at stake, the evidence to support the charges must be more "substantial" than that required to support conventional forms of regulatory action. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Accordingly, Petitioner is required to adduce proof commensurate with the potential penalty. Henderson Signs v. Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981). These standards will be used in evaluating the evidence.

    
    

11. The evidence discloses that Respondent did not know the individual who performed the work, and did not authorize him to do it under his permit.

    Indeed, Williams was absent from the state when the work was actually performed, and did not learn that an unauthorized individual had completed the job until

    the County brought it to his attention after a second inspection of the premises had been made.

    
    

12. In order to discipline Williams, it must be shown by "substantial" evidence that he aided and abetted Guy Graser in evading the requirements of Chapter 489. 2/ The evidence falls far short of this, and does not sustain the alleged violation. 3/ Therefore, it is concluded that the charge must fail.

    
    

13. Respondent made an ore tenus motion for directed verdict at the conclusion of the Department's case-in-chief. In view of the above conclusion, the motion is rendered moot.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that all charges against Floyd E. Williams be DISMISSED. DONE and RECOMMENDED this 9th day of June, 1983 in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1983.

ENDNOTES

1/ Case No. 82-1235 was later settled by the parties and is being held in abeyance pending approval of the settlement by the Construction Industry Licensing Board.

2/ Although Petitioner also argues that Respondent aided and abetted the general contractor, James W. Newton, in evading the provisions of the law, this alleged violation was not raised until closing argument during the final hearing. The administrative complaint refers only to Guy Graser, and Respondent was not given timely notice as to this additional violation.

3/ A more likely story is that Graser was hired by Newton to do the job while Williams was absent from the state. Governale was told as much by Graser when he was doing the work.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Thomas M. Gallen, Esquire 701-11th Street West Bradenton, Florida 33505

Allen R. Smith, Jr., Executive Director Electrical Contractors'

Licensing Board

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000701

Orders for Case No: 82-000701