STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS' LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2394

)

RAYMON E. JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Sarasota, Florida, on October 26, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Department of Professional Regulation

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: Raymon E. Johnson

Post Office Box 13981 Gainesville, Florida 32604

ISSUE PRESENTED

Whether Respondent's license as a registered electrical contractor should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set forth in Administrative Complaint, dated July 6, 1982

This case was consolidated for hearing with Department of Professional Regulation, Construction Industry Licensing Board v. Raymon E. Johnson, DOAH Case No. 82-2393, pursuant to Rule 28-5.106, Florida Administrative Code.

Respondent appeared at the hearing without legal counsel and, after being advised by the Hearing Officer as to his rights to counsel and as to procedures involved in an administrative proceeding, acknowledged that he understood such rights and elected to represent himself.

At the commencement of the hearing, Petitioner moved to amend paragraph 1 of the Administrative Complaint to correct a scrivener's error to delete the words "certified residential contractor" and substitute therefor "registered electrical contractor." Respondent did not object to the amendment and it was therefore granted.

This proceeding involves allegations by Petitioner that Respondent constructed several residences in Sarasota, Florida from 1979 to 1981 without subcontracting electrical work on the said residences, as required by Sarasota, Florida, in violation of pertinent provisions of Chapter 489, Florida Statutes, and that he further practiced contracting in a county where he was not properly registered, and on an inactive registration, also in violation of Chapter 489, Florida Statutes.

Petitioner presented the testimony of four witnesses at the hearing, and submitted nine exhibits in evidence. Respondent testified in his own behalf and submitted three exhibits.

FINDINGS OF FACT

1. Respondent Raymon E. Johnson is a certified residential contractor and was so licensed at all times material to the matters alleged in the Administrative Complaint. He was also registered by the Electrical Contractors' Licensing Board as an electrical contractor on April 9, 1979, but such license was not renewed and became delinquent on July 1, 1980. During the valid licensing period, he was registered to perform contracting in Gainesville, Florida and Alachua County. (Stipulation, Petitioner's Exhibit 1).

   
   

2. At an undisclosed date, Respondent, a resident of Gainesville, Florida, purchased a lot at 505 South Shore Drive, Sarasota, Florida. On November 30, 1979, Respondent applied to the Building Construction Department of Sarasota County for an owner's building permit to construct a residence on the lot, and the permit was issued on December 14, 1979. The application and permit form provided that if the applicant did not possess a contractor's license and was constructing a single family residence on his land, such structure could not be offered for sale or sold during the valid existence of the current building permit, and that all contracted services must be with licensed contractors. Respondent completed construction of a residence on the property in the spring of 1980, and sold it on or about May 10, 1980. During construction of the house, Respondent had placed a sign on the property which stated "Custom Homes by Ray Johnson." Respondent constructed the home himself and did not subcontract any of the work. (Testimony of Respondent, Petitioner's Exhibits 2, 4, 8)

   
   

3. In 1980, Respondent purchased a lot at 3625 Beneva Oaks Boulevard, Sarasota, Florida, and obtained an owner's building permit from Sarasota County on August 7, 1980, to construct a residence there. During construction, Respondent had a "For Sale" sign on the premises. Officials of the Sarasota County Building Construction Department informed him that he would have to take the sign down, and he did, until receiving the certificate of occupancy in early 1981 when he again placed the sign on the property. Respondent sold the house on August 8, 1981. The permit issued for construction contained the same prohibition against offering the property for sale or selling it during the existence of the building permit. Respondent constructed the house himself and did not utilize subcontractors. (Testimony of Respondent, Hayek, Taylor, Petitioner's Exhibits 2-3, 6, 9)

   
   

4. On February 2, 1981, Harry W. Mathley obtained an owner's building permit from the Sarasota County Building Construction Department to construct a residence at 3759 Beneva Oaks Boulevard, Sarasota, Florida. Mathley entered into an oral contract with Respondent to perform the framing, electrical and plumbing work on the house. At the time, Respondent told Mathley that he was

   not licensed in Sarasota County to perform electrical and plumbing work. Mathley paid Respondent a lump sum for the electrical materials and work.

   Mathley paid for a portion of the plumbing fixtures himself, and paid Respondent a lump sum for the remainder of the fixtures and for the plumbing work. Mathley indicated on a county Subcontractors Verification Form, prior to issuance of the building permit, that he would perform the electrical and plumbing subcontracting himself. During the course of construction, Mathley permitted Respondent to place a sign "Custom Homes by Ray Johnson" on the property to help him get business. Officials of the County Building Department placed a stop order on the premises on May 11, 1981, which recited that the reason for such notice was that subcontractors were not licensed. Respondent went to the Building Department where the supervisor of licensing explained to him that his sign did not correspond to the owner's building permit taken out by Mathley.

   Respondent performed the electrical and plumbing work as provided in the oral contract. (Testimony of Hayek, Mathley, Respondent, Petitioner's Exhibits 2, 6, Respondent's Exhibit l.)

   
   

5. On March 6, 1981, Robert L. Rogers obtained an owner building permit from the Sarasota County Building Construction Department to construct a residence at 3735 Beneva Oaks Boulevard, Sarasota, Florida. On the Subcontractors Verification Form which was completed prior to obtaining the building permit, Rogers stated that the electrical and plumbing work was to be performed by himself as owner. He entered into an oral contract with Respondent to do the framing, electrical and plumbing portions of the house and paid him in a lump sum for this work. Respondent advised him that he was not licensed to perform electrical and plumbing contracting in Sarasota, but was qualified in another county. Respondent performed the electrical and plumbing work as provided in the oral contract. (Testimony of Rogers, Respondent, Petitioner's Exhibit 2, Respondent's Exhibit 2)

   
   

6. Section 113.1 of Sarasota County Ordinance No. 80-90 makes it unlawful for any person to do any construction work in the various trades, including electrical and plumbing, unless he holds an active Sarasota County Operating Certificate, in addition to an applicable Sarasota County Certificate of Competency and State of Florida Registration, or a valid certification by the Florida Construction Industry Licensing Board. The ordinance further provides in that section that no person who is to perform all construction work on his own building is required to hold an operating certificate, provided that the building is for his own single family residence and the required permit is issued. It further provides that the hiring out by "day labor" in order to avoid operating certificate requirements shall be deemed a violation of the ordinance. Section 106.3(c) of the ordinance provides that all work contracted for under a construction permit shall be performed by contractors holding operating certificates for the particular trade involved. Respondent did not hold an operating permit or certificate of competency from Sarasota County at the time he did the work on the residences of Mathley and Rogers. (Testimony of Hayek, Petitioner's Exhibit 5)

   
   

7. Respondent testified at the hearing that he had originally intended to build the residences at 505 South Shore Drive and at 3625 Beneva Oaks Boulevard as personal residences and to move his family from Gainesville to Sarasota when his daughter completed high school in the spring of 1981, but that he was unable to do so because of financial difficulties involving unsold houses in Gainesville. However, he conceded that "Well, I am a builder. Any house that I build is for sale." He further testified that he has resided for several days a week in the residence at 3625 Beneva Oaks Boulevard from the period after it was

   completed until it was sold. (Testimony of Respondent, Respondent's Composite Exhibit 3)

   
   

   CONCLUSIONS OF LAW

   
   

8. Petitioner's Administrative Complaint, as amended1 alleges that Respondent violated subsection 489.513(4), Florida Statutes, in that he practiced contracting in a county where he was not properly registered, and also that he practiced contracting on an inactive registration in violation of subsection 489.533(1)(h), Florida Statutes, with respect to the four residences specified in the Complaint. It is further alleged that, in two instances in which he obtained an owner's building permit, he failed to subcontract electrical work as required by Sarasota County, Florida. However, no statutory provision was cited in support of these factual allegations, nor was a statutory ground for discipline set forth in the complaint. Accordingly, they do not provide a basis for disciplinary action.

   
   

9. Sections 489.513 and 48.533, Florida Statutes, read pertinently as follows:

   
   

   1. Any person desiring to be registered as an electrical contractor shall apply to the department for registration.

   2. Any electrical contractor may be registered to contract in the area specified in such registration if the contractor is qualified as provided in this section.

   3. All persons contracting in the state shall be registered with the department unless they are certified. To be registered, the applicant shall file evidence of holding a current occupational license or a current license issued by any municipality or county of the state for the type of work for which registration is desired, on a form provided by the department, together with evidence of successful compliance with the local examina- tion and licensing requirements, if any, in the area for which registration is desired, accompanied by the registration fee fixed pursuant to this act. No state-level examination is required for registration.

   4. Registration permits the registrant to engage in contracting only in the area and for the type of work covered by the registration, unless local licenses are issued for other areas and types of work

      or unless certification is obtained. When a registrant desires to register in an additional area of the state, he shall first comply with any local requirements of that area and then file a request with the

      department, together with evidence of holding a current occupational license or license issued by the county or municipality for

      the area or areas in which he desires to be registered, whereupon his evidence of

      registration shall be endorsed by the de- partment to reflect valid registration for the new area or areas.

      
      

      489.533 Disciplinary proceedings.--

      (1) The following acts constitute grounds for which the disciplinary actions in sub- section (2) may be taken:

      (h) Practicing on a . . . inactive . . . registration.

      
      

10. It is clear from the evidence that Respondent violated subsection 489.533(1)(h), Florida Statutes, by performing contract electrical work on the Mathley and Rogers residences without being properly and currently registered to perform such work in Sarasota County. The two residences which he built under an owner's building permit did not involve contracting with others and therefore the statutory provision is inapplicable in those instances.

    
    

11. Although the evidence is clear that Respondent violated subsection 489.513(4), Florida Statutes, by engaging in electrical contracting in Sarasota County without possessing an applicable state or local license, the complaint fails to allege an appropriate ground for disciplinary action under Section 489.533, F.S. and, consequently, no action can be taken for the established violations. It would be unwarranted to speculate as to a proper ground for discipline, particularly in view of the fact that proceedings to impose disciplinary action are penal in nature.

    
    

12. In assessing an appropriate penalty for Respondent's violations as concluded above, it should be noted that the evidence does not reveal any detrimental effects upon the individuals for whom he performed contracting work. It is not questioned that he is a competent and experienced contractor. His derelictions consist of technical violations of the registration statutes and, accordingly, it is not believed that revocation of his license is warranted. However, it is clear that Respondent showed little regard for the registration requirements of Chapter 489 and should therefore be disciplined. In view of the fact that his license as a registered electrical contractor is currently inactive, it is considered appropriate to impose an administrative fine of

$500.00.

RECOMMENDATION

That the Electrical Contractors' Licensing Board impose an administrative fine of $500.00 on Respondent Raymon E. Johnson.

DONE AND ENTERED this 2nd day of December, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 2nd day of December, 1982.

COPIES FURNISHED:

John O. Williams, Esquire Allen R. Smith, Jr. Department of Professional Executive Director

Regulation Board of Electrical Contractors

547 North Monroe Street 130 North Monroe Street Suite 204 Tallahassee, Florida 32301 Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary

Raymon E. Johnson Department of Professional

Post Office Box 13981 Regulation Gainesville, Florida 32604 130 North Monroe Street

Tallahassee, Florida 32301

Docket for Case No: 82-002394

Orders for Case No: 82-002394