STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-5206

)

KENNETH L. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 28, 1989, at Vero Beach, Florida, before Michael

1. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

   For Petitioner: John E. Jordan, Esquire

   Woolfork, Estes and Keough, P.A.

   131 Park Lake Street Post Office drawer 3751 Orlando, Florida 32802

   For Respondent: Mr. Kenneth L. Smith, pro se

   Post Office Box 1112 Roseland, Florida 32957

   ISSUES AND INTRODUCTION

   
   

   This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations set forth in an Administrative Complaint dated June 27, 1988. The Administrative Complaint alleges facts which are asserted to constitute violations of paragraphs (f), (i), and (l) of Section 489.533(1), Florida Statutes.

   
   

   All parties presented evidence at the hearing. Following the hearing the parties were afforded an opportunity to file proposed recommended orders. The Petitioner filed a proposed recommended order, which has been considered during the preparation of this recommended order. The Respondent did not file any post-hearing documents. The findings of fact proposed by the Petitioner are specifically addressed in the appendix to this recommended order.

   FINDINGS OF FACT

   
   

   Based on the evidence received at the hearing, I make the following findings of fact.

   
   

   1. At all times material to this case, the Respondent, Mr. Kenneth L. Smith, was licensed by the Electrical Contractors Licensing Board and held license number ER 0004954. At all times material to this case, the Respondent was also licensed as a plumbing contractor. The Respondent did not, at any time material to this case, hold any license that allowed him to contract for or perform concrete work.

      
      

   2. A number of years ago the Respondent formed a corporation named Home Maintenance Corporation and did business under that name. The corporation was dissolved a couple of years ago. The dissolution took place prior to October of 1987. The Respondent never registered the fictitious name Home Maintenance with the Electrical Contractors Licensing Board.

      
      

   3. In October of 1987, the Respondent entered into a contract with Mr. Eugene J. Dupree, Sr., to do the plumbing rough-in and the electrical rough-in on a residence. In October of 1987, the Respondent also entered into a contract with Mr. Dupree to frame up and pour the concrete slab for the same residence. The Respondent entered into all of these contracts using the fictitious name Home Maintenance. In addition to the

      fictitious name, Home Maintenance, the business forms used by the Respondent also had his correct name printed on them.

      
      

   4. The Respondent did the concrete work for which he had contracted with Mr. Dupree and received payment for that work. The concrete work was poorly done. Among other things, the slab was sixteen inches out of square. Because of the slab being out of square, it was necessary for the owner to spend additional money to correct the problems with the slab. The manner in which the slab was poured constitutes both gross negligence and gross incompetence.

CONCLUSIONS OF LAW

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

1. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

   
   

2. The Respondent has been charged with violation of the provisions of three paragraphs of Section 489.533(1), Florida Statutes. The applicable statutory provisions read as follows:

   1. The following acts shall constitute grounds for disciplinary actions as provided in subsection (2):

      . . .

      
      

      (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;

      . . .

      
      

      (l) Acting in the capacity of a contractor under any license issued hereunder except in the name of the licensee as set forth on the issued certificate or registration or in accordance with the personnel of the licensee as set forth in the application for the certificate or registration or as later changed as provided in this act; . . .

      
      

3. In order to establish a violation of paragraph (f) of Section 489.533(1), Florida Statutes, the actions complained of must be shown to have taken place ". . . in the practice of electrical or alarm system contracting." The evidence in this case establishes that the Respondent was guilty of negligence and incompetence in the performance of the subject concrete work, but that concrete work was not performed ". . . in the practice of electrical or alarm system contracting." Inasmuch as the negligence and incompetence complained of was in an area outside the scope of the practice regulated by the Electrical Contractors Licensing Board, such negligence and incompetence does not constitute a violation of paragraph (f) of Section 489.533(1), Florida Statutes.

   
   

4. With regard to the allegation that the Respondent violated paragraph (i) of Section 489.533(1), Florida Statutes, there is simply no clear and convincing evidence of any willful or deliberate disregard for or violation of any building codes. The record contains neither proof of the requirements of any applicable building code, nor proof that any such requirements were disregarded or violated by the Respondent. Therefore, the

   proof is insufficient to establish a violation of paragraph (i) of Section 489.533(1), Florida Statutes.

   
   

5. The evidence in this case does clearly show that the Respondent practiced electrical contracting in a name other than the name of the licensee as set forth on his certificate or registration. This is a violation of paragraph (l) of Section 489.533(1), Florida Statutes. In mitigation of this violation, it is noted that the Respondent's correct name was also included on the documents which contained the fictitious name under which the Respondent was doing business.

   
   

6. The Electrical Contractors Licensing Board has adopted disciplinary guidelines at Chapter 21GG-10, Florida Administrative Code. For a violation of paragraph (l) of Section 489.533(1), Florida Statutes, the guidelines provide for the following penalty: "Reprimand and $500 fine to one (1) year suspension followed by one (1) year probation." The rules in Chapter 21GG-10, Florida Administrative Code, also provide for the consideration of aggravating or mitigating circumstances. Mitigating circumstances established by the record in this case are that the Respondent has no prior disciplinary history and the harm occasioned by the Respondent's use of a fictitious business name was mitigated by his also including his correct name on his business documents.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that the Electrical Contractors Licensing Board issue a final order to the following effect:

1. Dismissing the charges that the Respondent violated paragraphs (f) and (i) of Section 489.533(1), Florida Statutes;

   
   

2. Finding the Respondent guilty of violating paragraph (l) of Section 489.533(1), Florida Statutes; and

   
   

3. Imposing a penalty consisting of a reprimand and an administrative fine in the amount of one hundred ($100.00) dollars.

DONE AND ENTERED this 14th day of April, 1989, at Tallahassee, Florida.

Michael M. Parrish, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1500

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1989

COPIES FURNISHED:

John E. Jordan, Esquire Woolfork, Estes and Keough, P.A.

131 Park Lake Street Post Office drawer 3751 Orlando, Florida 32802

Mr. Kenneth L. Smith Post Office Box 1112 Roseland, Florida 32957

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Pat Ard, Executive Director

Electrical Contractors Licensing Board

130 North Monroe Street Tallahassee, FL 32399-0750

APPENDIX

The following are my specific rulings on all proposed findings of fact submitted by all of the parties.

Findings proposed by Petitioner:

Paragraph 1: Rejected as subordinate and unnecessary details.

Paragraph 2: Accepted.

Paragraph 3: Accepted in substance. Paragraph 4: Accepted.

Paragraph 5: Rejected as subordinate and unnecessary details commenting on the evidence.

Paragraph 6: Accepted in substance, but many proposed details omitted as subordinate and unnecessary.

Paragraphs 7 and 8: Accepted that the Respondent entered into a contract to form up and pour the slab. The remainder is rejected as subordinate and unnecessary details.

Paragraphs 9, 10, and 11: Rejected as subordinate and unnecessary details.

Paragraph 12: Accepted in substance, with most proposed details omitted as subordinate and unnecessary.

Paragraph 13: Rejected as irrelevant inasmuch as the Administrative Complaint contains no charges regarding the quality of the plumbing installation.

Findings Proposed by Respondent: (None)

Docket for Case No: 88-005206

Orders for Case No: 88-005206