STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1996

)

ROBERT BENNETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 30, 1988, in DeLand, Florida.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Jason G. Reynolds, Esquire

Coble, Barkin, Rothert, Gordon, Morris, Lewis & Reynolds, P.A. Post Office Drawer 9670

Daytona Beach, Florida 32020 INTRODUCTION

The Petitioner, the Department of Professional Regulation, filed an Administrative Complaint against the Respondent, Robert Bennett, on October 8, 1987. Mr. Bennett executed an Election of Rights form on December 4, 1987, disputing the allegation of facts contained in the Administrative Complaint and requesting a formal administrative hearing. The Administrative Complaint and the Election of Rights form were filed with the Division of Administrative Hearings on April 22, 1988.

At the formal hearing the Petitioner presented the testimony of Lee Maranzino and Timothy Harbuck. "DPR" exhibits 1-5 were accepted into evidence. Mr. Bennett testified on his own behalf and "Respondent's" exhibits 1-5 were accepted into evidence.

During the formal hearing Mr. Bennett stipulated to certain facts. Those facts have been included in the Findings of Fact portion of this Recommended Order.

The Petitioner has filed a proposed recommended order containing proposed findings of fact. Mr. Bennett has filed a letter dated January 13, 1989, containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUE

Whether Robert Bennett's license as an electrical contractor should be disciplined for violating Sections 489.533(1)(f) and (i), Florida Statutes?

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility of prosecuting administrative complaints against electrical contractors in the State of Florida.

   
   

2. At all times relevant to this proceeding, Robert Bennett was licensed by the State of Florida as an electrical contractor. Mr. Bennett has been licensed as an electrical contractor since 1983. Mr. Bennett holds license number ER 0008588.

   
   

3. Mr. Bennett practices electrical contracting as "Bob Bennett Incorporated" or "Bennett Electric." Mr. Bennett has performed electrical work for approximately fourteen years.

   
   

4. On or about December 3, 1986, Mr. Bennett was contacted by Lee Maranzino or her husband. Mr. Bennett agreed to install three ceiling fans in the Maranzino home in Holly Hill, Volusia County, Florida.

   
   

5. After beginning work at the Maranzino home, Mr. Bennett discovered that electrical work other than installing the three ceiling fans was needed. He explained the problems he discovered to the Maranzinos and obtained their approval to perform the work.

   
   

6. After installing the ceiling fans, Mrs. Maranzino told Mr. Bennett that fuses associated with the use of the oven in her kitchen were blowing. Mr. Bennett was by Mrs. Maranzino's to correct the problem.

   
   

7. Mr. Bennett was aware that a permit for the electrical work he ultimately performed for the Maranzinos was probably required because at some point during his work he suggested to Mr. Maranzino that a permit be obtained. Mr. Bennett told Mr. Maranzino that "technically, it's maintenance so we might be able to get by without doing it, you know" when Mr. Maranzino expressed concern about the cost of obtaining a permit.

   
   

8. Ultimately, Mr. Bennett performed the following electrical work at the Maranzino home on December 3 and 8, 1986:

   
   

   1. Blocked off a junction box for a light in a closet and moved the light to the center of the room where the closet was located. The switch leg was also moved by Mr. Bennett;

      
      

   2. Replaced the wiring in three rooms and installed three ceiling fans;

      and

   3. Removed a subpanel with a burned fuseholder, installed and wired a new junction box, installed a proper "overcurrent device" in the main panel; rerouted the remaining four circuits to the main panel; and installed overcurrent devices on each circuit.

      
      

9. Mr. Bennett recommended the rewiring because of his concern about the condition of the existing wire.

   
   

10. Mr. Bennett used the following materials to perform the work he performed at the Maranzino home:

    
    

    1. 80 feet of 14-2 Romex wire;

    2. 4-1900 series boxes;

    3. 4 covers;

    4. 3-3 inch round boxes; and

    5. 6 Romex connectors.

       
       

11. Mr. Bennett was paid $384.00 for the work he performed for the Maranzinos.

    
    

12. Section 7-51(a) of the City of Holly Hill's Buildings and Building Regulations provides the following:

    
    

    (a) No person shall do any electrical construction of any character, install any electrical wiring, apparatus, or equipment or make any extensions or changes to existing systems or wiring for light, heat, power or advertising within the limits of the city, excepting the repairing of damaged or broken fixtures, apparatus or equipment and the ordinary work necessary for the proper maintenance of same without a permit issued by the electrical inspector.

    
    

    Permits required by this Regulation are to be obtained before the work is commenced.

    
    

13. No electrical permit was applied for or obtained for the electrical work performed by Mr. Bennett for the Maranzinos prior to the time the work was performed.

    
    

14. Mr. Bennett applied for and received an electrical permit for the electrical work performed by Mr. Bennett for the Maranzinos on July 29, 1987, approximately seven months after the work was completed.

    
    

15. No inspection was requested or performed by the Chief Building Official and Zoning Enforcement Officer of the City of Holly Hill for the electrical work performed by Mr. Bennett for the Maranzinos until approximately seven months after the work was completed.

    
    

16. According to the Chief Building Official and Zoning Enforcement Officer of the City of Holly Hill, an electrical permit should have been obtained prior to going forward with the electrical work performed by Mr. Bennett for the Maranzinos. Although he was also of the opinion that an electrical permit would not be required for installing ceiling fans (merely

    connecting of a ceiling fan to an existing connection), an electrical permit should have been obtained when Mr. Bennett discovered that the other types of electrical work he performed were necessary.

    
    

17. Mr. Bennett is licensed to practice electrical contracting in thirty- eight counties in the State. Mr. Bennett was aware that an electrical permit would be required for the type of work he performed in some cities located within some of those counties.

    
    

18. Mr. Bennett made no inquiry of building officials to determine whether an electrical permit was required for the work to be performed for the Maranzinos immediately before the work was commenced.

    
    

19. In 1983, before moving from Broward and Palm Beach Counties to Volusia County, Mr. Bennett discussed permit requirements generally with building officials throughout Volusia County, including the Chief Building Official and Zoning Enforcement Officer of Holly Hill.

    
    

20. This is the first time that disciplinary action has been taken against Mr. Bennett's license.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

22. This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Because Mr. Bennett's license is at stake, the evidence to support the charges against him must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

23. Section 489.533(2), Florida Statutes, authorizes the Construction Industry Licensing Board to impose one or more of the following penalties upon an electrical contractor who is guilty of any of the grounds set forth in Section 489.533(1), Florida Statutes:

    
    

    1. Denial of an application for licensure.

    2. Revocation or suspension of a license.

    3. Imposition of an administrative

       fine not to exceed $1,000 for each count or separate offense.

    4. Issuance of a reprimand.

    5. Placement of the electrical . contractor on probation for a period of time and subject to such conditions as the board may specify, including requiring the electrical .

       contractor to attend continuing education courses or to work under the supervision of another electrical . contractor.

    6. restriction of the authorized scope of practice by the electrical contractor.

24. In the Administrative Complaint filed against Mr. Bennett in this case, he has been charged with violating the following prohibited acts of Section 489.533(1), Florida Statutes:

    
    

    (f) Upon proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of electrical or alarm system contracting;

    (i) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipality or county thereof;

    
    

25. In particular, the Petitioner has argued that Mr. Bennett's action in failing to obtain an electrical permit for, or an inspection of, the electrical work he performed for the Maranzinos constituted incompetence or misconduct in the practice of electrical contracting, and deliberate disregard and violation of applicable building codes in violation of Sections 489.533(1)(f) and (i), Florida Statutes. The evidence presented in this case supports the Petitioner's argument.

    
    

26. Section 7-51(a) of the City of Holly Hill's Buildings and Building Regulations, requires that an electrical permit be obtained when any person shall "install any electrical wiring or make any extensions or changes to existing systems of wiring . . . ." The work performed by Mr. Bennett was of this type.

    
    

27. Mr. Bennett has argued that the exception to the circumstances for which a permit is required by Section 7-51(1) of the City of Holly Hill's Buildings and Building Regulations applies to the work he performed for the Maranzinos. This argument is rejected. The exception applies to "repairing of damaged or broken fixtures, apparatus or equipment and the ordinary work necessary for the proper maintenance of same . . ." This exception excludes any reference to repairing of damaged or broken wiring or maintenance of same. Even if the exception applied to wiring, the work at issue in this proceeding did not constitute maintenance. "Maintenance" is defined as "the act of maintaining . .

    . ." Webster's Ninth New Collegiate Dictionary, 1984. "Maintain" is defined as "to keep In an existing state . . . ." Id. Although some of the work performed by Mr. Bennett for the Maranzinos may have constituted maintenance subject to the exception, most of the work he performed did not amount to simply keeping the electrical system of the Maranzinos in its existing state.

    
    

28. Based upon the foregoing, it is concluded that Mr. Bennett should have obtained an electrical permit for the work he performed for the Maranzinos. His failure to do so constitutes a violation of Sections 489.533(1)(f) and (i), Florida Statutes.

    
    

29. Mr. Bennett has argued that Section 7-51 of the City of Holly Hill's Buildings and Building Regulations is vague and that Mr. Bennett exercised good faith in his actions. Therefore, Mr. Bennett has argued that he should not be found to have violated any rules, regulations or laws. If the suggestion that Section 7-51 of the City of Holly Hill's Buildings and Building Regulations is vague were correct (and it is not so concluded), Mr. Bennett's failure to comply with it would still not be excusable. If Mr. Bennett was confused, he should

    have consulted with the Chief Building Official and Zoning Enforcement Officer of the City of Holly Hill. Mr. Bennett indicated at the formal hearing that he recommended to Mr. Maranzino at some point while the work was being performed that a permit might be required. Based upon this action, Mr. Bennett obviously had a concern about whether a permit was required. Therefore, Mr. Bennett should have obtained a clarification from the proper officials.

    
    

30. Mr. Bennett did talk with the Chief Building Official and Zoning Enforcement Officer of the City of Holly Hill. This Conversation, however, took place in 1983, approximately three years before the work in question was performed. This action was too remote in time to excuse Mr. Bennett's failure to obtain an electrical permit, or his failure to at least discuss the question of whether an electrical permit was required, for the work performed by Mr. Bennett for the Maranzinos.

    
    

31. Rule 21GG-10.002, Florida Administrative Code, provides for the following range of penalties as disciplinary guidelines for imposing penalties for violations of Section 489.533(1), Florida Statutes:

    
    

    1. For a violation of Section 489.533(1)(f), Florida Statutes, a "$500.00 fine and reprimand to denial or revocation of licensure."

       
       

    2. For a violation of Section 489.533(1)(i), Florida Statues, a "[r]eprimand and up to $1,000.00 fine to one (1) year suspension followed by one year probation depending upon seriousness of violation."

    
    

32. Rule 21GG-10.001, Florida Administrative Code, provides that the penalties listed in Rule 21GG-10.002, Florida Administrative Code, are based upon a single violation and that a combination of violations may result in a higher penalty than that for a single, Isolated violation.

    
    

33. Rule 21GG-10.003, Florida Administrative Code, provides certain aggravating and mitigating circumstances which, if shown to exist, can result in a deviation from the guidelines. The relevant circumstances, and their applicability to this case, are as follows:

    
    

    1. The severity of the offense. The offenses in this matter are not terribly severe. Both violations are for the same action.

       
       

    2. The degree of harm to the consumer or public. The evidence failed to prove that there was any specific harm to the consumer or the public.

       
       

    3. The number of counts in the administrative complaint. There was only one count.

       
       

    4. The number of times the offenses have been committed and the disciplinary history of the licensee. This is the only proven offense.

       
       

    5. The status of the licensee at the time of the offense. The licensee was fully licensed.

    
    

34. The Petitioner has requested that a $500.00 fine be imposed on Mr. Bennett and that he receive a reprimand. Based upon the fact that mitigating circumstances exist and that no aggravating circumstances exist, it is concluded that a fine on only $250.00 should be imposed on Mr. Bennett and that he receive a reprimand.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Robert Bennett be found guilty of having violated Sections

489.533(1)(f) and (i), Florida Statutes. It is further

RECOMMENDED that Mr. Bennett be required to pay a $250.00 fine within thirty (30) days after this case becomes final and that Mr. Bennett receive a reprimand.

DONE and ENTERED this 13th day of February, 1989, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989.

APPENDIX

Case Number 88-1996

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 2 and 20.

2 19.

3 See 4-5, 8 and 16.

4-5 Proposed finding of fact is generally correct. The weight of the evidence, however, failed to prove that Mr.

Harbuck initially supported Mr. Bennett's actions because he had not paid sufficient attention to the information initially provided to him by Mr. Bennett concerning the work that was performed. Proposed finding of fact 5 is not supported by the weight of the evidence.

6 14.

COPIES FURNISHED:

Pat Ard, Executive Director Board of Electrical Contractors Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Elizabeth R. Alsobrook, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Jason G. Reynolds, Esquire Post Office Drawer 9670 Daytona Beach, Florida 32020

Kenneth E. Easley, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Docket for Case No: 88-001996

Orders for Case No: 88-001996