STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2732

)

DENNIS W. BROWN, )

)

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 December 16, 1983, at Port Richey, Florida.

APPEARANCES

For Petitioner: Stephanie Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee Florida 32301

For Respondent: Harvey V. Delzer, Esquire

Post Office Box 279

Port Richey, Florida 33568

By Administrative Complaint filed August 4, 1983, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Dennis W. Brown, Respondent, as an electrical contractor. As grounds therefor it is alleged that Respondent failed to obtain an electrical permit for work he contracted to do at St. Luke's Eye Clinic in New Port Richey and that a journeyman electrician was working on the project without the supervision of a master electrician; all in violation of the City of New Port Richey Code.

At the hearing Petitioner called three witnesses, Respondent called one witness, and four exhibits were admitted into evidence. In Exhibit 2, Petitioner's Request for Admissions, Respondent admitted all operative facts alleged, but denied these facts constitute a violation of the ordinances as alleged.

Proposed findings submitted by the parties which are included herein are adopted; otherwise, they are rejected as unsupported by the evidence or unnecessary or immaterial to the result reached.

FINDINGS OF FACT

1. Dennis W. Brown is licensed to practice electrical contracting in Florida and was so licensed at all times here relevant. He holds license No. ECO 00494.

   
   

2. In May, 1983, Respondent, while doing business as AAA Electrical Contractors, Inc., contracted to perform the electrical work at the St. Luke's Eye Clinic in New Port Richey, Florida, in conjunction with some remodeling work being done by Dennis R. Garrett, the construction supervisor, for Dr. Gill, the owner of St. Luke's Eye Clinic and other properties in the area. Garrett is licensed as a building contractor and was so licensed at all times here relevant.

   
   

3. The oral contract entered into between Respondent and Garrett provided for relocating some electrical fixtures in conjunction with the remodeling. This consisted principally of replacing one 4-foot by 4-foot fixture with three 2-foot by 2-foot fixtures. No additional electrical load was added by this alteration.

   
   

4. The original plan started as cabinet work in the front-desk area of the clinic and the electrical work involved replacing switches and receptacles. Both Garrett and Respondent concluded no permit was required for this remodeling, and no permit was obtained.

   
   

5. During the remodeling, a wall was relocated by the owner's maintenance man who did all of the work or supervised subcontractors other than electrical.

   
   

6. On May 11, 1983, William Kropick, Jr., a building official of the City of New Port Richey, visited the site. Because of the relocation of the wall, Kropik concluded that a building permit was required, and he issued a Stop Work Order until permits were obtained for contract and structural work. Kropik also observed a journeyman electrician, employed by Respondent, working at the site while Respondent was not present.

   
   

7. It is virtually impossible for the master electrician to be on one job site continually, and it is a generally accepted practice in Pasco County for the master electrician to visit the site daily and thereby meet the code requirement for supervision of journeyman electricians.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

9. The applicable provisions of the City of New Port Richey Code are: Section 8-11(a) which provides:

   A permit shall be issued by the

   electrical inspection division to

   a qualified person prior to any work started or caused to be started on

   new or remodeled installations, temporary or permanent, or for making extensions and/or changes to existing wiring systems for heat, light or power upon premises, inside or

   outside and/or attached to buildings or structures of any character.

   
   

   Section 8-12(26) provides:

   The addition of any electrical outlet or load in a residential or commercial building shall require a permit. (Maintenance without increase in load will not require a permit.)

   
   

   Section 8-25(b) provides:

   The term "journeyman electrician" as used in this Code shall mean, a person who has in his possession an unexpired journeyman's certificate issued to him in accordance with the provisions of this article and is qualified to perform work under the supervision of a master electrician.

   
   

   Section 8-28(c) provides in part:

   . . . and further provided that said electrical contractor shall have at all times, as a supervisor of such electrical installations, a person who has in his possession, an unexpired master electrician's certificate that has been issued to him by the board of electrical examiners of the city.

   
   

10. The work here involved was denominated maintenance by those people charged with the performance of the work. Since no load increase was involved, it was concluded no permit was required in accordance with the provisions of the statute above-quoted.

    
    

11. Respondent is here charged with violating Section 489.533(1)(i), Florida Statutes, which provides that disciplinary action may be taken against a licensee for:

    
    

    Willfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipality or county thereof.

    
    

12. It is significant that all witnesses, except the city building inspector, concluded that a permit was not required for the intended remodeling of the eye clinic. Since the building code specifically exempts the requirement for a permit if the electrical load is not increased, and no evidence was submitted to suggest the remodeling involved an increase in this load, the conclusion that a building permit was not required appears reasonable.

    
    

13. The phrase "working under the supervision of a master electrician" does not necessarily mean that the master electrician to supervise the work of a journeyman electrician, must constantly look over the journeyman's shoulder or even remain constantly on the site. The evidence presented is that the custom in the trade is for the master electrician to exercise proper supervision by

    visiting the site on a daily basis to check on the work performed. Accordingly, a finding of failing to supervise the work performed by the journeyman electrician has not been shown.

    
    

14. Section 489.533(1)(i) above-quoted requires a specific intent to violate or disregard the ordinance be proven before this section is violated. Here there was not a scintilla of evidence of such specific intent. At the most, and assuming the building inspector's determination regarding the permit requirement is correct (and his power to stop work and impose requirements on the contractor makes it unprofitable for the contractor to argue), it could be found that Respondent made an error in judgment in not obtaining a permit.

    
    

15. Likewise, by following the custom of the trade in visiting the site on a daily basis, Respondent can hardly be found guilty of willfully violating the code provisions regarding the supervision of the work by a master electrician.

    
    

16. The burden is on Petitioner to prove the charges alleged. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Whether the burden is by clear and convincing evidence or by a preponderance of the evidence standard is immaterial in this case since Petitioner has sustained neither.

From the foregoing it is concluded that Petitioner has failed to prove Respondent willfully or deliberately violated any provisions of the City of New Port Richey Code.

It is therefore

RECOMMENDED a Final Order be issued finding Dennis W. Brown not guilty of all charges and dismissing these proceedings.

ENTERED this 9th day of January, 1984, at Tallahassee, Florida.

K. N. AYERS, 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 January, 1984.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Harvey V. Delzer, Esquire Post Office Box 279

Port Richey, Florida 33568

Allen R. Smith, Jr. Executive Director Electrical Contractors

Licensing Board Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002732

Orders for Case No: 83-002732