STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS' LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0323

)

DONALD J. JERNIGAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing issued by the undersigned on February, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on May 1, 1984, in Lakeland, Florida. The issue for consideration is whether Respondent's license as an electrical contractor in the State of Florida should be disciplined because of alleged misconduct contained in the Administrative Complaint filed herein.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Donald J. Jernigan, pro se

5767 Brookloop Road

Lakeland, Florida 33803 BACKGROUND INFORMATION

On November 22, 1983, Fred Roche, Secretary of the Department of Professional Regulation, signed an Administrative Complaint in this case against the Respondent which in two counts alleged that Respondent was guilty of negligence, incompetence, or misconduct in the practice of electrical contracting in violation of Section 489.533(1)(f), Florida Statutes (1981); willfully or deliberately disregarded or violated local laws in violation of Section 489.533(1)(i), Florida Statutes (1981); and, further, by virtue of the fact he was the subject of disciplinary action by the Lakeland, Florida, Building Code Board of Examiners, violated Section 489.533(1)(h), Florida Statutes (1981).

Respondent submitted an Election of Rights form on January 16, 1984, in which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.

At the hearing, Petitioner presented the testimony of Kenneth L. Smith, an electrical contractor from Lakeland, Florida, with whom Respondent contracted for the performance of certain electrical work; Lamar Smith of Lakeland, the electrical contractor who allegedly repaired or completed the work that Respondent failed to do properly; James W. Meeks, an electrical inspector for the City of Lakeland, Florida; Harold G. Brooks, a city official in the Construction Permit Department for Lakeland, Florida; and Robert A. Rasmussen, the Superintendent of the Building Inspection Division for the City of Lakeland, Florida. Petitioner also introduced Petitioner's Exhibits 1 and 2. Respondent testified in his own behalf and introduced Respondent's Exhibit A.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained in the Administrative Complaint, Respondent, Donald J. Jernigan, possessed Florida Electrical Contractor's License No. ER0007589.

   
   

2. Kenneth L. Smith is a general contractor in Lakeland, Florida. Respondent worked for him on occasion as a subcontractor in the electrical area. In early March 1983, Smith hired Respondent to do some electrical work on a duplex he owned which had been damaged by fire. At the time, the apartment was under contract for sale, and Mr. Smith had until April 1, 1983, to fix it up for transfer. Mr. Smith emphasizes that he had an express understanding with Respondent that all work had to be done by April 1, 1983, or he would lose the sale. Respondent, in a late-filed exhibit, presented a letter from William S. Chambers, III, a real estate agent who was involved in the proposed sale of the property in question. Mr. Chambers acknowledges that the sale was not consummated but, while not detailing the actual reason for the sale falling through, contends that at no time was the fact that the repairs were not completed given or used as a reason for the failure of the sale to go through by either party. This does not alter the fact that Mr. Smith requested that the repairs be completed by April 1, 1983.

   
   

3. Smith called Respondent several times prior to April 1 to insure that the electrical work was done on time. At a point late in the sequence of events, he understood that the dry wall was due to be installed and the required electrical inspection had not been accomplished. When he pointed this out, Respondent told him to go ahead and hang the dry wall, as the City could inspect from up in the ceiling. Mr. Smith did this based on the representation of the Respondent; and when the final inspection was done, the inspector would not pass the property because preliminary inspection had not been accomplished. He indicated that a different electrical contractor would have to examine the work and certify that it was done properly before it could be passed without pulling out all the dry wall for a visual inspection.

   
   

4. At this point, Mr. Smith hired Lamar Smith of Southeastern Electric to accomplish this inspection and discharged the Respondent. When Lamar Smith arrived at the apartment and turned on the power, the only things that worked in the entire apartment were the dishwasher, the disposal, and two kitchen receptacles. In the course of his inspection, he found that several home runs were left out (several feeder lines were not present) ; numerous junction boxes in the attic were not made up properly (wires were left out and not put in the boxes as required); no junction boxes in the attic were grounded; some breakers were left out in the master panel; and the door bell did not work. According to Mr. Smith, at first glance from the inside of the apartment, the electrical work looked as though it were complete; but in reality, all the rough-in had not been accomplished, and it took him two days to do the work properly.

5. According to Mr. Meeks, the electrical inspector for the City of Lakeland and the individual who wrote the permit for this particular work, Respondent called in for the rough-in inspection on March 31, 1983. When Meeks went out to the property to conduct the inspection, he found that the dry wall was already in and he could not accomplish it. Meeks told Respondent at that time he would have to either remove the dry wall or have another registered electrician certify the wiring before they would permit that work to continue.

   
   

6. When an apartment or any property is damaged by fire, a permit is required to rewire the damaged premises for power. This permit is required by Lakeland City Ordinance.

   
   

7. Meeks also indicated that if a remodeling job required added wiring without tearing out the wall, the inspectors would inspect by going into the attic and crawlways if possible. However, if they were called to inspect the area that was previously open for inspection and was improperly closed in prior to inspection, they would not go up into the attic or into the crawlways to accomplish the inspection. That is policy of the Inspectors' Office.

   
   

8. In that regard, according to Harold G. Brooks, a city permit inspector who inspected the property in question immediately after the fire to see if power in the unburned area could be turned on, the majority of damage to the burned area was in the kitchen ceiling and in the hall. This description is consistent with that of Mr. Ken Smith, the owner, who indicated that the dry wall was required in the kitchen and dining room. For some reason, the dry wall was also replaced on the living room ceiling and the back room ceiling.

   
   

9. Respondent contends that he was trying to do this job as quickly as possible consistent with the work load he had at the time. He agrees that it was in early March when he agreed to take on the job. He looked at the house the day after it burned and presented a proposal for repairs that afternoon or the next day. He started work on the project right away and stayed on the project from the time he started work up until the inspection problem. Respondent does not recall Mr. Smith setting any deadline for completion, only a need to finish the job as quickly as possible.

   
   

10. Mr. Jernigan admits he did not request a roof end inspection when the basic wiring was completed before dry wall. He states that this house is the type of house that may have had boxes already installed that could not be found. He does not feel that it was his responsibility to give authority to cover up the walls or the ceiling and that that decision was made by Mr. Smith, the owner. The work that he did, he contends, could have been checked through the attic shuttle, and he claims he would have corrected any deficiencies found. He further claims he was never given an opportunity to remove the dry wall for inspection prior to the final inspection and the requirement to have another electrician certify the work.

    
    

11. Whatever the delay, it was occasioned by Respondent's failure to get the roof end inspection performed. According to Ordinance No. 2304 of the City of Lakeland, Florida, a master electrician (Respondent was a master electrician), shall request any required inspections. By Subsection (2), an inspection is required prior to wiring being concealed, and failure to timely request such an inspection constitutes a violation of the City Code. This inspection was not requested by Respondent as required by the ordinance.

12. At a special meeting of the Building Code Board of Examiners for the City of Lakeland, Florida, held on April 25, 1983, a complaint against Respondent was considered. Respondent was charged by the electrical inspectors with negligence, incompetence, or misconduct in the doing of electrical work and a willful and deliberate disregard in violation of the City's Electrical Code. On May 24, 1983, the Chairman of the Board, on behalf of the Board, entered an Order finding that the Respondent was guilty of negligence in the performance of electrical work and willful and deliberate disregard in violation of the City of Lakeland Electrical Code. The Board went on to suspend for 90 days the Respondent's Certificate of Competency issued by the City of Lakeland and required that he pass an appropriate examination at the end of the 90-day period prior to receiving a new Certificate of Competency.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceeding.

    
    

14. Respondent is charged with several violations of Section 489.533, Florida Statutes (1981), which outline the grounds "for which disciplinary action in subsection (2) may be taken." In the instant case, these are Subsections (1)(f), (h), and (i).

    
    

15. Subsection (1)(f) permits discipline "upon proof that the licensee is guilty of fraud or deceit or of negligence, incompetency, or misconduct in the practice of electrical contracting." Here the evidence establishes that the Respondent failed to accomplish several tasks in the rewiring of the property in question which should have been done by a competent electrician as a part of the rewiring job. The fact that he failed to do so constitutes sufficient evidence to establish negligence in the practice of electrical contracting.

    
    

16. Subsection (1)(i) of the statute in question permits discipline for "willfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipality or county thereof." Here the ordinance in question requires that a master electrician, which status was held by the Respondent, request an inspection of any wiring done during construction before the wiring is covered from view. Respondent admits that he did not request the required inspection, and his arguments as to why the inspection was not requested are not persuasive. Consequently, a clear violation of the City of Lakeland Electrical Code has been shown, and this constitutes a violation of the statute as alleged.

    
    

17. In Count II of the Administrative Complaint, Petitioner alleges that Respondent's being the subject of disciplinary action by a local board constitutes a violation of Section 489.533(1)(h). Subparagraph (h), as alleged, provides for discipline when the Respondent is shown to have been practicing on a revoked, suspended, or inactive certificate or registration. It is obvious that this was an inadvertent citation because, in reality, Subsection (n) provides for discipline of a licensee when disciplinary action by any municipality or county has been taken against it. The statute also requires that this action be reviewed by the Construction Industry Licensing Board before the Board takes any disciplinary action of its own. It can be inferred here that because of the statutory requirements for a probable cause determination prior to the initiation of administrative action, this review, as required by

the statute, has been made. In any case, the evidence clearly shows that the local building code Board of Examiners evaluated Respondent's performance in this case and found it wanting. Its action, as evidenced by its Order cited above, constitutes sufficient support for a conclusion that Section 489.553(1)(n), Florida Statutes (1981), has been violated.

RECOMMENDED ACTION

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

RECOMMENDED THAT Respondent's license as an electrical contractor in the State of Florida be suspended for a period of one year.

RECOMMENDED this day of June, 1984, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 4th day of June, 1984.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Donald J. Jernigan 5767 Brookloop Road

Lakeland, Florida 33803

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Jerry W. Hendry Executive Director

Electrical Contractors' Licensing Board

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-000323

Orders for Case No: 84-000323