STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD M. WHARTON, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1810

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, ELECTRICAL CONTRACTORS' ) LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Fort Lauderdale, Florida, on August 9, 1984, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The appearances at the bearing were as follows:

For Petitioner: Edward M. Wharton, pro se

Hi-Rise Safety Systems, Inc. 700 NW 46 Avenue

Plantation, Florida 33317

For Respondent: Arthur C. Wallberg, Esquire

Assistant Attorney General Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301

At the hearing, the Petitioner testified on his own behalf, but did not call any other witnesses. The Respondent presented the testimony of Mr. Eugene

1. Simpson, who is a member of the Electrical Contractors' Licensing Board and is currently Chairman of the Board's applications committee. The parties offered one Joint Exhibit, which was received in evidence, and the Respondent offered two other exhibits, both of which were received in evidence.

   
   

   INTRODUCTION

   
   

   The ultimate issue in this case is whether the Petitioner is eligible to sit for the licensing examination for an unlimited certified electrical contractor's license. Petitioner's application to sit for the exam was denied. By this proceeding, petitioner seeks to demonstrate that he meets all of the qualifications and that his application to sit for the examination should be approved. The disputed issues which were identified prior to hearing were: (a) whether Petitioner has sufficient commercial and 3-phase experience and (b) whether Petitioner's corporation has demonstrated sufficient financial responsibility.

   FINDINGS OF FACT

   
   

   Based on the testimony of the witnesses and the exhibits received in evidence, I make the following findings of fact.

   
   

   1. Edward M. Wharton (hereinafter "Wharton" or "Petitioner") has applied to the Electrical Contractors' Licensing Board (hereinafter "the Board") for the licensure examination as a certified electrical contractor. Following review of Wharton's application, the Board advised him that it intended to deny his application on the basis of his failure to show sufficient experience.

      
      

   2. During the middle 1960's, Wharton held a Master's electrician's license in Philadelphia, Pennsylvania. For a two-year period during the 1960's, Wharton ran a sole proprietorship named Wharton Electrical Service. Wharton was in charge of all phases of the operations of Wharton Electrical Service, including the supervision of electrical construction activities. He pulled the electrical permits for Wharton Electrical Service's jobs. The work done by Wharton Electrical Service consisted of some newly constructed residences and new electrical construction installed in renovated residential and commercial buildings. The commercial work included schools, stores, and factories. Approximately 90 percent of the work done by Wharton Electrical Service was commercial work. None of the work done by Wharton Electrical Service was 3- phase because 3-phase was not supplied by the power companies in that area.

      
      

   3. After approximately two years of operating Wharton Electrical Service, Wharton left that business in order to accept a position with Raymond Rose Company. From then until February of 1980 (when he started Hi-Rise Safety Systems, Inc.), Wharton worked for a number of years in positions that did not involve any form of electrical contracting. During part of this time he was involved in the installation of low-voltage alarm and signaling systems. 1/

      
      

   4. In February of 1980, Wharton started a new business known as Hi-Rise Safety Systems, Inc., which be continues to operate. Hi-Rise Safety Systems, Inc., is primarily involved in the business of installing alarm systems. The substantial majority of the alarm systems it installs are low-voltage systems. It has also done some electrical contracting work, some of which has been commercial and 3-phase service. 2/ Hi-Rise Safety Systems, Inc., has been able to do electrical contracting work by employing the services of a local master electrician, Hubert C. Meadors, who was the qualifying agent for electrical permits for the corporation and was responsible for assuring compliance with electrical codes. Even though Meadors was the qualifying agent, Wharton, as president of the corporation and principal employee, did a large part of the supervision of the electrical construction work performed by Hi-Rise Safety Systems, Inc.

      
      

   5. Specialty contracting, such as the installation of alarm systems, is not, and has not been, considered by the Board to constitute "electrical contracting." The Board's consistent interpretation of the term "electrical contracting" has been to include within the meaning of that term only work which involves the installation of high-voltage systems. This is a reasonable interpretation of the term in view of the vast differences between the potential hazards associated with low-voltage systems and high-voltage systems. 3/ A misinstalled low-voltage system poses no significant risk of fire or electrical shock. A misinstalled high-voltage system poses a substantial risk of fire or electrical shock.

   6. It has been a consistent policy of the Board to require that the qualifying electrical contract' no experience include a substantial proportion of work that is commercial and 3-phase service. This is a reasonable policy in view of the fact that commercial and 3-phase service work is more complex than residential work and requires a knowledge of and application of many parts of the National Electrical Code that are not involved in residential work.

      
      

   7. Wharton and Hi-Rise Safety Systems, Inc., are financially responsible and enjoy a good credit and business reputation. The Hanover Bank of Florida has granted a $10,000 unsecured line of credit to Hi-Rise Safety Systems, Inc., for 1984. Neither Wharton nor Hi-Rise have ever had any liens filed, have never had to settle any bonds, have never been involved in any lawsuits, and have never bad any disputes over hills.

      
      

      CONCLUSIONS OF LAW

      
      

      Based on the foregoing findings of fact and the applicable statutes, rules, and legal principles, I make the following conclusions of law.

      
      

   8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case.

      
      

   9. Section 489.521(2), Florida Statutes, provides, inter alia, that an applicant for licensure "must possess the required skill, knowledge, and experience, as evidenced by 3 years' proven experience in the trade "

      The consistent policy of the Electrical Contractors' Licensing Board in its implementation of the quoted statutory language is reflected in the following language which the Board is presently in the process of adding to Rule 21GG- 5.93, Florida Administrative Code:

      
      

      In this experience the qualifying agent must show that he has designed, planned, laid out, and directly supervised electrical construction activities and the installing of electrical components.

      
      

      The experience must include a substantial proportion of work that is commercial and 3-phase service (unless the application is

      for a specialty contractor's license). If, in his experience, the qualifying agent did not pull the electrical permit and hold the responsibility for assuring compliance with electrical codes, he must demonstrate specifically how and to what extent he directly supervised electrical construction activities.

      
      

   10. The language quoted immediately above is not yet an effective rule, but the Board proved at the hearing in this case that the policy quoted above has been the consistent policy of the Board. The Board has sufficiently and properly explained and defended its non-rule policy in this case. See Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983)

       
       

   11. It is well-settled that an applicant for a permit or license has the burden of proving his entitlement to the permit or license applied for. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778

       (Fla. 1st DCA 1981). Application of the foregoing non-rule policy of the Board to the facts in this case leads inescapably to the conclusion that Wharton has not carried his burden of proof in showing that he is entitled to admittance to the licensure examination, because he has not demonstrated that he has three years of experience in electrical contracting and that such three years of experience includes a substantial proportion of work that is commercial and 3- phase. During the two years that Wharton operated Wharton Electrical Service he did no 3-phase service work because there was no 3-phase service in that area.

       Therefore, even assuming (without deciding) that the two years of work with Wharton Electrical Service constitutes two years of qualifying experience because of the substantial amount of commercial work done by Wharton Electrical Service, Wharton must still prove an additional year of qualifying experience and must prove that during that additional year he performed a substantial amount of 3-phase service work. This he has failed to do because there is no persuasive evidence that during the four years of operation of Hi-Rise Safety Systems, Inc., Wharton has performed sufficient electrical contracting work to constitute the equivalent of an additional year of electrical contracting experience. Similarly, there is no persuasive evidence that a substantial proportion of the electrical contracting work performed by Hi-Rise Safety Systems, Inc., was 3-phase service work. 4/

       
       

   12. Section 489.511(3), Florida Statutes, and Rule 21GG5.05, Florida Administrative Cede, require proof that an applicant is financially responsible and has a good credit and business reputation. Wharton and Hi-Rise Safety Systems, Inc., satisfy these requirements.

RECOMMENDATION

For the reasons discussed above, it is recommended that the Electrical Contractors' Licensing Board issue a Final Order denying the application of Edward M. Wharton for admittance to the certified electrical contractor's licensure examination.

DONE and ORDERED this 11th day of September 1984, at Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 11th day of September 1984.

ENDNOTES

1/ There is no contention that any of the work performed during this period constitutes qualifying experience for the certified electrical contractor's licensure examination.

2/ For reasons which are discussed hereinafter under the caption "CONCLUSIONS OF LAW," the evidence is insufficient to demonstrate either what percentage of the work done by Hi-Rise Safety Systems, Inc., has been electrical contracting (as distinguished from alarm systems) or what proportion of the electrical contracting work bias been commercial and 3-phase service.

3/ See also the definitions at Section 489.505(8) and (14), Florida Statutes.

4/ The evidence on this point is not persuasive because it is vague, incomplete, and conflicting. Although Mr. Wharton testified about many of the jobs done by Hi-Rise Safety Systems, Inc., it was obvious that his testimony was not painting a full picture of all of the work that the corporation had done.

Unfortunately, Mr. Wharton did not bring to the hearing a complete set of, or a complete summary of, the jobs that have been completed by Hi-Rise Safety Systems, Inc. Mr. Wharton tended to testify in terms which were not precise-- terms such as the corporation having done "a lot of" this or that type of work. And although at one point in his testimony Mr. Wharton stated that at least two- thirds of the work done by Hi-Rise Safety Systems was electrical contracting work (as opposed to alarm system work) at another point in his testimony he admitted that he did not know what percent of the corporation's work constituted electrical contracting. I am persuaded that his admission of a lack of knowledge is more credible than his later estimates. And, in any event, the evidence is totally insufficient to demonstrate that Hi-Rise Safety Systems, Inc., has included a substantial portion of 3-phase service work in whatever amount of electrical contracting it has done.

COPIES FURNISHED:

Mr. Edward M. Wharton

Hi-Rise Safety Systems, Inc. 700 NW 46 Avenue

Plantation, Florida 33317

Arthur C. Wallberg, Esquire Assistant Attorney General Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301

Allen R. Smith, Jr.

Executive Director

Florida Electrical Contractors' Licensing Board

130 N. Monroe St. Tallahassee, Florida 32301

Docket for Case No: 84-001810

Orders for Case No: 84-001810