STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 85-2919

)

WILLIAM M. CHARLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly assigned Hearing Officer James E. Bradwell, held a public hearing in this case on October 30, 1985, in Miami, Florida. A transcript of the final hearing was received by the Division on January 29, 1986.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: William M. Charles, Pro se

6755 S. W. 53rd Street Miami, Florida 33155

ISSUE PRESENTED

The issues presented for decision herein are whether or not the Respondent diverted funds from a construction project involved herein; violated local building codes and thereby engaged in misconduct in the practice of electrical contracting all in violation of Sections 489.533(1)(m), (f), and (i), Florida Statutes (1983).

FINDINGS OF FACT

Based upon my observation of witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

During times material herein, Respondent is and continues to be a registered electrical contractor having been issued license number ER004865.

On November 28, 1983, Clell Villella, manager of Coral Castle, Inc., a tourist attraction, and Respondent entered into a subcontractual agreement for the installation of parking lot and outdoor lighting electrical connections to existing electrical services at the Coral Castle. The contract price was $26,600 and the parties agreed that the work would be-completed by January 1, 1984, the beginning of Coral Castle's peak tourist season. (Petitioner's Composite Exhibit 2 and testimony of Clell Villella).

On December 8, 1983, Respondent was given an initial deposit of $6,600 to commence work. (Petitioner's Composite Exhibit 3). After Respondent was given the initial deposit he failed to appear at the Coral Castle to commence work on the project for approximately 30 days despite Manager Villella's constant prodding through phone calls.

Respondent commenced work on the project during early January, 1984 and worked evenings for a period of approximately ten to twelve days on the project. After Respondent had worked on the project for approximately twenty hours, he abandoned it by failing to appear at the site for more than 30 days. Respondent failed to return Manager Villella's phone calls. When it became apparent that Respondent would not be returning to the project, Manager Villella hired Tierney Electrical Contractors, Inc., (Tierney) to complete the electrical work on March 7, 1984.

Tierney submitted a proposal to complete the work in question for the sum of $36,500. (Petitioner's Exhibit 4).

Tierney was requested to make some modifications to the work which Respondent had contracted to perform. Tierney estimates the added cost resulting from the modifications increased the value of his proposal by approximately $4,000. (Testimony of William Tierney).

When Tierney commenced construction on the project, Manager Villella requested that he estimate the amount of the work that Respondent had completed. Tierney estimated that amount to be 13% of the project or approximately $2,226. Tierney's calculations were based on the fact that Respondent had installed approximately 643 feet of 3/4-inch rigid conduit.

Based on the estimate of the work completed by Respondent, Coral Castle, by letter, requested Respondent to refund the

$4,374 difference between the amount of the deposit initially tendered to him and the amount of work completed as estimated by Tierney Electrical Contractors. As of the date of the hearing, Respondent failed to respond to this demand or return any telephone calls from Manager Villella.

At no time while Respondent performed the work in question for Coral Castle, Inc., had he (Respondent) applied for or obtained an electrical permit to perform the work in question.

Respondent acknowledges that no permit was obtained for

the work he performed at Coral Castle. However, he maintains that the common practice in the area is that permits are "pulled" after the work is completed or, in any event, prior to the first inspection; that it is permissible to commence construction except that a permit has to be obtained prior to the time when the job is either completed or the first inspection is due.

However, a review of the pertinent sections of the South Florida Building Code, 1 1984 edition, reveals that it is necessary to first file an application for and obtain a permit prior to. commencement of construction. Chapter 3, Section 301, South Florida Building Code (1984 Edition).m

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

2. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

3. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

   
   

4. During times material, Respondent was a registered Electrical Contractor and is therefore subject to the disciplinary guides of Chapter 489, Florida Statutes.

   
   

5. Competent and substantial evidence was received herein to establish that the Respondent, by failing to return $4,374 to Coral Castle, Inc., engaged in conduct constituting a diversion of funds from a construction project in violation of Section 489.533(1)(m), Florida Statutes (1983).

   
   

6. Competent and substantial evidence was offered herein to establish that the Respondent failed to obtain an electrical permit to perform the work for Coral Castle, Inc. In this regard

   Chapter 3, Section 301 of the South Florida Building Code (permits required) provides:

   
   

   It shall be unlawful to construct, enlarge, alter, repair . . . or to install or alter any equipment for which provision is made or the installation of which is regulated by the Code; without first having filed application and obtain a permit therefore, from the building official, validated by payment thereof.

   
   

   The only exception which waives the permit requirement involves projects where the value of the work to be performed does not exceed $100 in labor and material. The subject project does not fall within the exception.

   
   

7. The work involved herein constitutes electrical construction within the meaning of the South Florida Building Code (Section 4503(a) and (b). Finally, Respondent was required to obtain a permit prior to the commencement of the work involved herein and to pay the fee for the permit as required. South Florida Building Code Section 4505.1(a) and Section 4505.3.

   Based thereon, Respondent violated a local building code in violation of Section 489.533(1)(i), Florida Statutes (1983).

   
   

8. Based on the violations found in the two preceeding paragraphs, next above, Respondent engaged in misconduct in the practice of electrical contracting within the meaning of Section 489.533(1)(f), Florida Statutes (1983).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent's license as a Registered Electrical Contractor be suspended for a period of one (1) year. Further, it is recommended that the suspension be stayed for a period of 30 days during which time the Respondent will be allowed an opportunity to enter into a settlement agreement with Coral Castle, Inc., and provided that such an agreement is made, that the suspension revert into a term of probation for a like period i.e., (1 year).

Finally, it is recommended that the Respondent pay the Petitioner an administrative fine in the amount of $1,000.

Recommended this 4th day of February, 1986, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1986.

ENDNOTE

1/ Petitioner requested, and the undersigned took official notice of the South Florida Building Code.

COPIES FURNISHED:

Allen R. Smith, Jr. Executive Director Electrical Contractors

Licensing Board

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Charles Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

William M. Charles 6755 S. W. 53rd Street Miami, Florida 33155

Docket for Case No: 85-002919

Orders for Case No: 85-002919