STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, ELECTRICAL ) CONTRACTORS' LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 90-6172
)
DALE A. SPARKS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on October 17-18, 1990, in West Palm Beach, Florida.
APPEARANCES
For Petitioner: Robert G. Harris, Esquire
Department of Professional Regulation
Northwood Centre, Suite 60 1940 North Monroe Street
Tallahassee, Florida 32399-0792
David M. Gaspari, Esquire Adams, Coogler, Watson & Merkel Suite 1600, NCNB Tower
1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069
For Respondent: Neil F. Garfield, Esquire
World Executive Building
Suite 333, 3500 North State Road 7 Fort Lauderdale, Florida 33319
Scott Anderson, Esquire 2033 Main Street, Suite 402
Sarasota, Florida 33427 STATEMENT OF THE ISSUE
The issue presented is whether Respondent has violated various statutes regulating the practice of electrical contracting as alleged in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
PRELIMINARY STATEMENT
On September 12, 1990, the Secretary of the Department of Professional Regulation entered an Order of Emergency Suspension of Licensure suspending Respondent's electrical contractor's license. An Administrative Complaint was issued by the Department on October 4, 1990, based on the allegations contained in that Order of Emergency Suspension of Licensure.
Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint, and Respondent's request for an expedited final hearing was granted.
At the final hearing, Petitioner voluntarily dismissed paragraphs numbered
36 through 44 which included Counts Fifteen through Eighteen of the Administrative Complaint.
Petitioner presented the testimony of Kevin J. Bork, Lester M. Bennett, Mary Scalza, Nicholas Simeone, Kenneth Parsons, and Respondent, Dale A. Sparks. Additionally, Petitioner's Exhibits numbered 1, 4-9, and 11-19 were admitted in evidence.
Respondent, Dale A. Sparks, also testified on his own behalf and presented the testimony of Alton F. LaBrecque. Additionally, Respondent's Exhibits numbered 1, 7, 9, and 10 were admitted in evidence.
Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times material hereto, Respondent has been licensed as a certified electrical contractor in the State of Florida, having been issued License No. EC0000971.
At all times material hereto, Respondent has been the sole qualifying agent for AAA Quality Electric, Inc. (hereinafter "AAA"), a California corporation with its principal office located in Riverside, California.
At all times material hereto, Respondent has been a permanent resident of the State of California.
By Order of Emergency Suspension of Licensure entered on September 12, 1990, by the Secretary of the Department of Professional Regulation, Respondent's license as a certified electrical contractor in Florida was summarily suspended.
At the time, Respondent held either master's licenses or contractor's licenses in 21 states and held hundreds of city licenses.
Between January, 1989 and June, 1990, AAA operated in 11 states. During that time period, AAA had as many as 65 people working in the office in California, with as many as 85 electricians in the field. During that time period, AAA had as many as 14 electricians working in the State of Florida.
AAA only hired electricians who possessed either a journeyman's or a master's license in the jurisdiction where they worked since that level of licensure enables that electrician to work without direct, on-the-job
supervision. AAA advertised when a position was open and administered to job applicants an examination which AAA considers equivalent to a journeyman's examination. To be hired, one needed to pass the examination. AAA would also require that a new employee provide AAA with his or her license number or a copy of his or her current licensure.
AAA also employed area supervisors and regional supervisors. Respondent was available to any of the journeymen or masters working for him either by telephone or by sky pager at all times. If anyone doing an installation had a problem, that person could contact Respondent to discuss the problem with him.
Respondent's permit-pulling policy was to pull a permit whenever one was required. He had on file, in the various jurisdictions, letters allowing one of his employees to pull permits under his State of Florida license number. For example, in Pompano Beach, which is located in Broward County, Respondent had on file a letter allowing Bill Mopis to pull permits under Respondent's license even though Mopis held a master's license in Broward County and could pull permits under his own license number. By the time that Petitioner suspended Respondent's license to practice electrical contracting in the State of Florida, Respondent had changed his permitting policies so that a permit was pulled for any type of work performed in the State of Florida.
AAA advertised in newspapers and in telephone directory yellow pages. When a request for service was made, one of the journeymen or master electricians employed by AAA would be dispatched to the work location. AAA in California was aware of which employee had been dispatched to perform which job. On the day following the job, AAA would call the customer to make sure that the customer was satisfied by the work that had been performed.
In March, 1989, Anna and Rudolf Reider contacted AAA pursuant to an ad in the telephone directory yellow pages and requested that an electrician come to their residence to install a ceiling fan. The residence was located in Pompano Beach, Broward County, Florida.
Terry Stewart, who holds a master's license from Broward County, responded to their call. When he arrived, Mrs. Reider explained to him that she also wanted a wall outlet which was located behind her bed in a different room to be moved a few feet to the side in order to make it accessible.
Stewart took down a light fixture from the ceiling and replaced it with a ceiling fan. He also moved the wall outlet located in the master bedroom by running conduit along the wall and mounting a metal outlet box on the wall in the outlet's new location.
Stewart charged the Reiders $391.30, which represented the rate of $46.50 per 1/2 hour plus materials. He also applied a senior citizen discount of 10% to the labor portion of the bill. The hourly rate charged by Stewart was that rate which was quoted over the telephone by AAA to Mrs. Reider when she placed the service call and is in accordance with the labor rate reflected on the work order.
The Reiders were satisfied with the ceiling fan installation and with the price charged by Stewart. Although Mrs. Reider had shown Stewart an electrical installation located on her porch, which installation is a pipe with wires inside, and told him that was what she expected, and although she admits that she knew that the new wall outlet would not look the same as the other
outlets in the room because there had to be an exposed pipe on the wall, she and her husband were dissatisfied with the appearance of the wall outlet extension in their bedroom.
Mrs. Reider subsequently contacted AAA, and Stewart returned her phone call. He advised her that he was willing to come back to her residence and change the appearance of the installation by using a smaller pipe, but he would need to charge her $46.50 for the return service call. Mrs. Reider was unwilling to pad any additional monies for Stewart to return and has never had that work accomplished. Both the ceiling fan and the extended wall outlet work properly.
Stewart did not obtain a permit before performing the electrical work. There was no licensure barrier to Stewart obtaining a permit and the inspections that attend the obtaining of a permit since at the time Respondent was licensed by Petitioner, AAA had an occupational license to perform work in Broward County, and no occupational license was required for the City of Pompano Beach since AAA did not maintain an office within that municipality.
When Stewart completed the job, he gave the Reiders a 5-year extended warranty, and both Mr. and Mrs. Reider signed the work order authorizing the work and payment therefor, and acknowledging satisfactory completion of the work.
The Chief Electrical Inspector for the City of Pompano Beach believes that an electrician, to work without supervision, must be either a journeyman or a master electrician, which Terry Stewart was. The City of Pompano Beach has taken no action against AAA for failure to pull a permit for the Reider job. Although the Chief Electrical Inspector believes that a permit is required for any electrical work performed within the City of Pompano Beach, as provided in the City's permitting ordinances at Section 301.1(e), Section 301(b) (2) sets forth exceptions to the permitting requirements and provides that:
No permit shall be required, in this or any of the following Sections, for general maintenance or repairs which do not change the Occupancy and the value of which does not exceed Eight Hundred Dollars ($800.00) in labor and material. ...
At the time that AAA performed the work at the Reider residence, the ad which appeared in the yellow pages portion of the telephone directory did not contain Respondent's license number.
The City of Pompano Beach has adopted the South Florida Building Code which adopts the National Electrical Code. The National Electrical Code provides that the bonding jumper is to be a green wire or the wire is to be left bare.
In the receptacle installed by Stewart, a white wire was used for the bonding jumper. That violation of the National Electrical Code is easily remedied by stripping the white wire bare or by substituting a green wire. Such work is covered under the warranty given by AAA to the Reiders.
Although the 1990 National Electrical Code prohibits the use of outlet boxes as the sole support for a ceiling fan and provides an exception from that requirement, the evidence is unclear as to the requirements of the National Electrical Code in force at the time the work was performed.
Within the electrical trade, taking down an existing light fixture and replacing it with a ceiling fan and moving a wall outlet are considered to come within the definition of repair and maintenance work. Accordingly, the work performed by AAA at the Reider residence was excluded from permitting requirements both by definition and by cost.
Mary Scalza is the owner of Rub-A-Dub Laundromat in West Palm Beach. Early Saturday morning, on June 2, 1989, she experienced a breaker box "blowout", which incapacitated 14 of her washing machines.
She located AAA's ad in the yellow pages of the telephone directory and called. AAA quoted her the price for emergency, weekend repairs, and she agreed. Terry Stewart responded to the call.
When he arrived at Rub-A-Dub, he saw that the breaker box was located between two rows of washing machines on the floor and next to the overflow drain. He advised Scalza that the location of the box was a code violation, and the box had to be relocated. He told her the approximate cost of doing so but told her that she would have to call AAA to verify with the Company what the cost would be. She told him that the cost of relocating the box was too expensive and implored him to effectuate some repair so that her machines would be operable as soon as possible.
Stewart explained to her the dangerous nature of the location of the box but agreed to effectuate a temporary repair. Stewart was unable to replace the entire breaker box; rather, he replaced all inside parts, using the old box. Although Scalza denies that Stewart told her he was simply effectuating a temporary repair until Monday morning when he could obtain the proper parts from a parts supply company, the work order signed by Scalza conforms with AAA's policies regarding temporary repairs. Specifically, the work order provides that no guarantee was given for the work. It is clear that Stewart did return to Rub-A-Dub Monday morning, and Scalza refused to let him touch the breaker box.
When Stewart finished his temporary repair on Saturday afternoon, he submitted to Scalza a statement in the amount of $892.10. She gave him a check for $600.00 and paid him the balance in cash. When Scalza's husband came to the laundromat, he became very angry about the amount of the bill.
On Monday morning, Scalza contacted the electrical inspector for the City of West Palm Beach, who came to the laundromat, looked at the work that had been accomplished, and "red tagged" the job due to the location of the breaker box. Scalza did not advise him that it was simply an emergency temporary repair. Scalza stopped payment on her check and contacted AAA, advising them not to return to complete the job.
When an emergency repair is effectuated in West Palm Beach, it is Permissible for the permit to be pulled on the next business day. Since AAA was fired from the job on the next business day, AAA did not apply for a permit. Instead, AAA sent Stewart back to Rub-A-Dub to refund to Scalza the cash portion of her payment to AAA and to remove the parts Stewart had used for which Scalza would not pay. Scalza gave Stewart the parts which AAA had supplied which had already been removed by the other electrical company hired by her to do the work.
That subsequent company did pull a permit for the work at Rub-A-Dub and did relocate the breaker box, which apparently Scalza authorized that company to do. The electrical inspector for the City of West Palm Beach agrees that the responsibility for pulling the permit on the Rub-A-Dub job was that of the subsequent company that effectuated the repairs and not the responsibility of AAA which had been fired from the job before it could pull a permit on Monday, the next business day following the emergency repairs effectuated over the weekend.
Petitioner's witnesses agree that if the work done by AAA was a temporary repair for a few days, then the work that was accomplished by Stewart was, in fact, a safe, temporary repair. Further, it is a "judgment call" as to whether an electrician is required to bring electrical service up to code requirements, regardless of the nature of the work an electrician has been called upon to do. Further, anything involving water is always a "judgment call." Even Petitioner's expert would consider effectuating repairs to the breaker box in the location it was in when Stewart came to Rub-A-Dub if
the box was completely enclosed and weatherproofed. No evidence was offered as to whether the box was completely enclosed and weatherproofed.
Alton F. LaBrecque is an employee of AAA. He holds a journeyman's license from Pinellas County.
Pinellas County and Hillsborough County have a reciprocal agreement regarding licensing, i.e., as long as a person holds a journeyman's license from one of those counties, he is not required to obtain a journeyman's license to work in the other county which is on the other side of the bridge. It is the practice in both Pinellas and Hillsborough Counties that if a journeyman who is licensed in one of those counties shows his card to an inspector from the other county, that is all that is required by the inspector of the other county to insure himself that the journeyman is properly licensed. The City of Tampa, which is in Hillsborough County, allows Hillsborough County to regulate licensing. If a person is licensed to work in Hillsborough County, then he is also licensed to work within the City of Tampa. At all times material hereto, AAA had an occupational license to work within the limits of the City of Tampa.
On September 26, 1989, Heidi Bekiempis contacted AAA to request that someone come to her residence in Tampa to replace a dimmer switch. Alton LaBrecque responded to that call.
When he arrived at the Bekiempis residence, Mrs. Bekiempis also advised him that certain lights within the house were flickering. LaBrecque replaced the dimmer switch which had been completely burned.
It is LaBrecque's practice to involve the customer in the work that he is doing as much as possible so that they understand what is being done and why. When he checked the breaker box, he noticed that there were loose connections within the breaker box. He had Mrs. Bekiempis "running around the house" turning lights on and off while he tightened wires and checked the breakers.
LaBrecque tested each breaker in the box with a digital meter and then with an infrared tester. Using the two different pieces of equipment, he tested both the line side and the load side of the breakers while they were carrying a full load. He discovered that three single-pole 20-amp breakers and one double- pole 60-amp breaker were consuming electricity as it passed across the breakers. Manufacturer specifications allow a breaker to consume up to .029 volts. The
four breakers in question were each consuming one volt which is equal to 120 watts. He understood that the implication of the fact that those breakers were "hot" and consuming electricity meant that they would not trip properly and there was a danger of wires burning or even a fire starting. He also understood that a bad breaker had been the cause of the dimmer switch burning. Although his work order completed at the time indicated that a breaker was only giving off 87-93 volts and he testified at the final hearing that each of the breakers was consuming one volt, even the one volt consumption testified to at the final hearing was sufficient to show that a dangerous condition existed and the breakers needed replacing.
Even though Mrs. Bekiempis denies authorizing the replacement of the circuit breakers, she does admit that LaBrecque told her about the danger of a fire, and she signed the work order after completion of the job acknowledging the satisfactory completion of the work. That work order clearly reflects the replacement of the breakers, the results of LaBrecque's testing, the reason why the breakers were replaced, and an
itemized listing of the costs for the replacement breakers. It is found that Mrs. Bekiempis authorized replacing the breakers. Mrs. Bekiempis paid AAA $384.00 for the work performed. The replacement dimmer switch works properly, and the Bekiempis' lights stopped flickering after LaBrecque replaced the bad breakers. Mrs. Bekiempis unsuccessfully tried to stop payment on her charge card for all of the work performed by AAA.
Between September 26, 1989, and February 15, 1990, the replaced breakers and the replacement breakers were primarily in the possession of Mr. and Mrs. Bekiempis. During that time, Mr. Bekiempis gave breakers to two different electricians for testing. On February 15, 1990, he gave
breakers to an investigator for the Department of Professional Regulation. On February 20, 1990, the investigator gave breakers to Joe Bolesina, the Chief Electrical Inspector for Pinellas County. At some subsequent time, Bolesina marked four breakers and gave them to a clerk in his office to send to General Electric for testing. When Bolesina subsequently received breakers from General Electric, he returned them to Petitioner's investigator who retained custody of them until his deposition was taken in this case on October
No explanation was offered as to how the breakers which were marked as an exhibit to the deposition of Petitioner's investigator on October 10 got to the deposition of Joe Bolesina taken on October 11 at which time the breakers were marked as an exhibit to his deposition. No explanation was offered as to who had custody of the breakers between October 11 and the time they were produced at the final hearing commencing on October 17, 1990.
It is probable that the breakers that were marked at some unidentified time by Joe Bolesina are the same breakers which were admitted in evidence at the final hearing in this cause since the tags placed on the breakers by Bolesina remain on the breakers. However, there is no basis for assuming that the breakers which were replaced by LaBrecque five months before Bolesina received them and marked them were the same breakers that were replaced by LaBrecque.
During the afternoon of Saturday, March 17, 1990, a tornado blew down a huge oak tree located in the front yard of the residence of Clarence Cruey in the City of Tampa. As it fell, the tree tore the entire electrical service off the front of the Cruey residence, including the meter, the riser, and the wires. The customer had no power at all. Cruey looked in the yellow pages to find an electrical contractor who would come to his residence immediately to effectuate the repair work even though it was still storming. AAA responded to his call,
quoted to him its rates for 1-hour emergency service, and dispatched Alton LaBrecque and another AAA employee to perform the services. The two men worked there in the dark and in the rain for four hours, replacing Cruey's electrical service. Few of the parts were capable of being reused since they had been damaged by the tree or because they did not meet code requirements. For example, a Delta surge arrester had been used previously, and that type of equipment was, at the time, illegal in Tampa. AAA completely replaced the riser, hub, meter can, meter socket, wiring, and many other parts. At the conclusion of their work, AAA presented an itemized bill to Cruey in the amount of $2,556.17, and Cruey signed the acknowledgment that all work had been performed satisfactorily. He paid for the work by credit card but subsequently stopped payment, and AAA has been paid no monies for their labor or material regarding the Cruey job.
Since the work at the Cruey residence was performed on an emergency basis on a Saturday, on the following Monday LaBrecque went to pull the permit for the work. Employees at the City of Tampa would not accept his permit application saying that he was not authorized to pull a permit for AAA and that a copy of AAA's workmen's compensation insurance was not on record with the City. Although authorization letters had been previously submitted, and although a copy of the insurance certificate had been filed with the City in January when AAA's City of Tampa occupational license was renewed, LaBrecque had AAA send additional copies of those documents to the City. When he again attempted to apply for the permit, the City advised him that they still did
not have copies of those documents. LaBrecque contacted AAA and another set of documents was provided to the City. When LaBrecque returned, he was told that the documents still had not been received. When LaBrecque hand- carried another set of those documents to the City and "stuffed it in their faces," they accepted his permit application, ten days after he first applied.
The permit itself was not issued for several months, and by the time of the final hearing in this cause the City had still refused to make the required inspection although Respondent had called for the inspection a number of times, including once on the record during a hearing conducted by the Unified Construction Trades Board of the City of Tampa.
Although refusing to make an official inspection, the Chief Electrical Inspector for the City of Tampa inspected the work at the Cruey residence on an "unofficial" basis. Based upon that unofficial inspection, he concluded that AAA had replaced parts that did not need replacement and that AAA had not done all of the work for which it had charged Cruey.
On July 3, 1990, the Unified Construction Trades Board of the City of Tampa revoked Respondent's permitting privileges for 1 year for the work done at the Cruey residence.
On August 7, 1990, the Unified Construction Trades Board of the City of Tampa suspended Respondent's permitting privileges to run concurrently with the revocation entered on July 3, 1990. On September 11, 1990, based on the fact that the City of Tampa had taken disciplinary action against Respondent, the Electrical Board of Adjustment, Appeals and Examiners of Hillsborough County suspended Respondent for a period of 5 years. These two disciplinary actions are not involved in the Administrative Complaint filed against Respondent in this cause, and proof of them was offered by Petitioner for the sole purpose of aggravation of any penalty to be assessed against Respondent.
Photographs admitted in evidence at the final hearing in this cause clearly refute the testimony given by the Chief Electrical Inspector for the City of Tampa which resulted in the July 3, 1990, revocation of Respondent's permitting privileges. The photographs reveal the work done by AAA and also depict the damaged parts which were replaced by AAA since those damaged parts were still lying in Cruey's yard at the time the photographs were taken. Respondent was prohibited by the Unified Construction Trades Board from offering the photographs and other evidence in defense of the charges then pending against him.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this proceeding. Section 120.57(1), Florida Statutes (1989).
Pursuant to Section 489.533(1), Florida Statutes, the Electrical Contractors' Licensing Board is authorized to take disciplinary action against an electrical contractor who is found guilty of the following conduct:
Violating any provision of s. 489.531 or chapter 455.
(f) Being found 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.
Committing financial mismanagement or misconduct in the practice of contracting
that causes financial harm to a customer. Financial mismanagement or misconduct occurs if:
A valid lien has been recorded against the property of a contractor's customer for supplies or services ordered by the contractor for the customer's job, the contractor has received funds from the customer to pay for the supplies or services, and the contractor has not had the lien removed from the property, by payment or by bond, within 30 days after the date of the lien.
A contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price that had been paid to the contractor
as of the time of abandonment, unless the contractor is entitled to retain the excess funds under the terms of the contract or refunds the excess funds within 30 days after the date of abandonment.
The contractor's job has been completed and it is shown that the customer has had to pay more for the contracted job than the
original contract price, as adjusted for subsequent change orders, unless such increase in cost was the result of circumstances beyond the control of the contractor, was the result of circumstances caused by the customer, or was otherwise permitted by the terms of the contract between the contractor and the customer.
Being disciplined by any municipality or county for an act that is in violation of
this section, which disciplinary action shall be reviewed by the board before the board takes any disciplinary action of its own.
Failing to affix a registration or certification number as required by s. 489.521(7)
Proceeding on any job without obtaining applicable local building department permits and inspections.
Practicing beyond the scope of a certification or registration.
Counts One through Six in the Administrative Complaint relate to the Reider job in Pompano Beach. Count One and Count Two charge Respondent with proceeding on that job without a timely permit having been issued and without timely obtaining all required inspections in violation of Sections 489.533(1)(i) and (r), Florida Statutes. Respondent admits that no permit and no inspection was obtained in relation to the Reider job. Although Petitioner offered the testimony of the Chief Electrical Inspector who testified that permits were required for all electrical work, Petitioner also offered in evidence a copy of a City of Pompano ordinance which provides an exemption for general maintenance and repair under the sum of $800.00 for labor and materials. No evidence was offered by Petitioner as to the meaning of general maintenance and repair. On the other hand, Respondent testified that removing a ceiling light fixture and replacing it with a ceiling fan and moving an existing wall outlet fall within that definition according to the electrical trade. Even Petitioner's expert witness testified that he does not pull permits for all electrical work performed by him. The overall evidence indicates that the Reider job was exempt from permitting requirements by both definition and cost, and Petitioner has failed in its burden of proof.
Count Three charges Respondent with violating Sections 487.521(7)[sic] and 489.533(1)(q), Florida Statutes, by failing to include his state license number in an advertisement appearing in the 1989-1990 edition of the Greater Fort Lauderdale directory yellow pages. Petitioner offered in evidence a copy of an ad from an unidentified telephone book for an unidentified year, which ad does not carry Respondent's state license number. A copy of a second ad from an unidentified phone book for an unidentified year was attached to the deposition of Lee Wansor, the Chief Electrical Inspector for the City of Pompano Beach, which ad does not carry Respondent's license number. A third ad was attached as an exhibit to the deposition of Clarence Cruey, which ad does carry Respondent's license number.
Respondent testified that for his yellow pages advertising he used an intermediary publishing company which, in fact, produced some of his ads in some locations without the license number, while other ads in other locations did have his license number. He testified that this occurred during 1988. He further testified that the absence of his license number in his ads was injurious to his business since many customers look for a license number in selecting an electrical contractor. Petitioner did not offer any evidence as to the ads that were actually submitted by Respondent to the publishing companies in order to prove that Respondent intentionally or knowingly omitted his license number from the ad as submitted for publication. Petitioner also failed to offer any evidence that any ad appeared without a license number more than once to show that Respondent negligently allowed advertising to be done without his license number being reflected thereon. Accordingly, Petitioner's proof fails to rise to that level necessary to enable Petitioner to take disciplinary action against Respondent.
Count Four charges Respondent with violating Sections 489.533(1) (a) and 489.531(1)(e), Florida Statutes, by employing persons who are not certified or registered to practice electrical contracting. Section
489.531 does prohibit the employment of persons who are not certified or registered to practice contracting; however, that statute is not a disciplinary statute but rather makes the commission of such an act a criminal offense by classifying it as a misdemeanor of the first degree. The intent of this allegation in the Administrative Complaint is ambiguous. Further, Respondent did not employ unlicensed contractors. Rather, Respondent, a licensed electrical contractor, employed journeymen and master electricians to perform the work, as they are allowed to do under existing law. Petitioner has failed to prove by competent substantial evidence that Respondent has committed a violation, as alleged in Count Four, and disciplinary action cannot be taken against him pursuant to this allegation.
Count Five alleges that Respondent violated Section 489.533(1)(f), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as the qualifying agent. The employee who performed the Reider job was a licensed master electrician. Petitioner is unclear in its allegation and did not offer proof as to what required supervision Respondent failed to exercise regarding the Reider job. Both Petitioner's and Respondent's witnesses testified that a licensed journeyman or master electrician is permitted to perform electrical work without direct, on-the-job supervision and that that
is the effect of a person achieving that licensure status. The evidence is unrebutted that Respondent was available 24 hours a day by telephone and by sky pager to consult with the licensed journeymen and masters that he employed to do electrical work. AAA monitored the jobs coming in, dictated the policies and pricing, and checked with each customer on the following day to ascertain that the customer was satisfied with the work that had been performed. Accordingly, Petitioner has failed to prove by competent substantial evidence that Respondent has violated Section 489.533(1)(f), Florida Statutes.
Count Six charges Respondent with violating Section 489.533(1)(f), Florida Statutes, by installing a surface-mounted wall outlet with exposed tubular conduit in a separate room from the ceiling fan. The wall outlet and the ceiling fan bore no relationship to each other. The fact that they were located in different rooms is a logically insufficient basis for finding Respondent guilty of negligence, incompetence, misconduct, fraud and/or deceit in the practice of electrical contracting. Petitioner has failed to prove that Respondent is guilty of violating Section 489.533(1)(f), Florida Statutes, as alleged in Count Six.
Although Petitioner did prove that the wrong colored bonding jumper wire was used in relationship with the wall outlet, Respondent was not charged in this Administrative Complaint with that code violation. The evidence is also clear that Respondent was not aware of the fact that a white wire was used until the final hearing in this cause, that that violation is easily remedied by stripping the wire and leaving it bare which Petitioner's witness agrees would be a legal installation, and such corrective action is covered under Respondent's warranty.
Counts Seven through Eleven relate to the electrical work performed at Rub-A-Dub Laundromat in West Palm Beach. Count Seven alleges that Respondent violated Sections 489.533(1)(i) and (r), Florida Statutes, by proceeding on said job without a timely permit having been issued. The evidence is uncontroverted that the work performed at Rub-A-Dub was emergency work performed on Saturday morning. Petitioner called as its witness the electrical inspector for the City of West Palm Beach who testified that when work is done on a Saturday the electrician calls on Monday to pull the permit. He also testified that since Respondent had been fired from the job on Monday and a different company had been hired to finish the job, then it was the responsibility of the replacement company to pull the permit for the job. The evidence is also uncontroverted that by Monday morning Mary Scalza had stopped payment on her check, had fired AAA from the job, and had hired another contractor to relocate the box, work which she would not authorize AAA to do. There is simply no proof that a permit was required under the circumstances of the Rub-A-Dub job, and Petitioner has failed to prove that Respondent was obligated to obtain a permit.
Count Eight alleges that Respondent violated Section 489.533(1)(s), Florida Statutes, by working in the City of West Palm Beach without the required local licensure. Petitioner offered no evidence as to what local licensure was required and further offered no evidence as to what local licensure Respondent might have lacked. Petitioner has failed to prove this allegation.
Count Nine alleges that Respondent violated Sections 489.533(1)(f) and (i), Florida Statutes, by failing to perform work to code in direct violation of specific sections of the National Electrical Code and by willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipality or county thereof. Petitioner failed to offer in evidence the National Electrical Code or any building codes or ordinances from Palm Beach County or the City of West Palm Beach. Accordingly, violations of those codes cannot be determined.
Petitioner's witness, the electrical inspector from the City of West Palm Beach testified that the location of the breaker box at Rub-A-Dub was in violation of the National Electrical Code. However, Respondent did not locate that box; rather, the box was already in that location in violation of code requirements before AAA was contacted to effectuate repairs. The repairs effectuated by AAA were to last for two days until the parts houses opened on Monday. The electrical inspector testified that if the repairs effectuated by AAA were temporary repairs for a few days, then the repairs effectuated in fact were safe, temporary repairs. He further testified that if the breaker box was in the wrong location, that is the responsibility of the owner and not of the contractor. Petitioner's expert witness also testified that it is a judgment call whether an electrician is required to bring the electrical service up to code requirements, regardless of the nature of the work the electrician is called upon to do and, further, that anything involving water is a judgment call. He lastly testified that if the box were completed enclosed and
weatherproofed, then he himself would consider effectuating repairs to the breaker box in the location that it was in. Petitioner failed to prove that Respondent violated the statutory prohibitions as alleged in Count Nine.
Count Ten alleges that Respondent has violated Section 489.533(1)(q), Florida Statutes, by failing to include a state license number in an advertisement appearing on page 486 in the October 1988-1989 edition of the Greater West Palm Beach directory yellow pages. Petitioner did not offer in evidence a copy of that advertisement. Even if a copy of that advertisement had been offered in evidence, Petitioner still failed to meet its burden of proof for the reasons discussed, infra, regarding the Fort Lauderdale ad alleged in Count Three of the Administrative Complaint filed herein.
Count Eleven alleges that Respondent violated Section 489.533(1)(f), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent. As with the Reider job performed by the same licensed master electrician, Petitioner has failed to specify what supervision Respondent was required to exercise over his licensed master electrician that he did not do. Petitioner has failed to prove this allegation for the reasons stated, infra, relative to Count Five of the Administrative Complaint.
Counts Twelve through Fourteen relate to the Bekiempis job. Count Twelve alleges that Respondent violated Sections 489.533(1) (a) and 489.531(1)(e), Florida Statutes, by dispatching Alton LaBrecque, an unlicensed individual at the time of said job, to perform work. At the time he performed the Bekiempis job, Alton LaBrecque was a licensed journeyman in Pinellas County. Hillsborough County grants reciprocity to such individuals, and the City of Tampa recognizes the licensure of those persons whose licenses
are recognized by Hillsborough County. Accordingly, at the time of that job Alton LaBrecque was a licensed journeyman and was performing work at the Bekiempis residence as such. Petitioner has failed to meet its burden of proof that Respondent violated the statutes alleged in this Count for the same reasons as are discussed, infra, relating to Count Four of the Administrative Complaint.
Count Thirteen alleges that Respondent violated Section 489.553(1)(m), Florida Statutes, by charging a fee for removing five operable breakers from the main panel, thereby costing the customer more than the original contract price. Petitioner has failed to prove Respondent guilty as alleged in this Count of the Administrative Complaint. It has been found in this Recommended Order that the breakers which LaBrecque replaced at the Bekiempis residence were not functioning properly and were causing a dangerous and threatening condition to exist in that house. The breakers removed by LaBrecque were consuming electricity, causing lights to flicker, and would not have tripped at the proper level, a potentially dangerous situation.
Although breakers were admitted in evidence in this proceeding relative to this Count subject to Respondent's objection that a proper chain of custody had not been established, a review of the depositions submitted during the final hearing and after the conclusion of the final hearing to support the chain of custody clearly indicates that Petitioner has not established a proper chain of custody, and the breakers admitted in evidence during the final hearing should not have been admitted. The testimony is uncontroverted that the replaced and the replacement breakers remained in the custody of Mr. and Mrs. Bekiempis and other individuals for five months before they were given to Petitioner's investigator, and they were not marked until they were marked by the subsequent possessor of the breakers on an unknown
date. Before the breakers were given to the investigator, according to Mrs. Bekiempis' testimony, they were given to other electricians for testing. There is no reasonable basis for believing that the circuit breakers admitted in evidence in the final hearing were the circuit breakers removed by Alton LaBrecque.
During the final hearing, certain testing was done of the breakers by Petitioner's expert to prove that the breakers admitted in evidence were operable. He did so by hooking up each of the breakers to a Simpson meter. He concluded that each breaker was producing 119-120 volts. The evidence is clear that the Simpson meter used to conduct the experiment during the final hearing is far less accurate than the digital meter or the infrared tester utilized
by LaBrecque when he tested the breakers. Further, LaBrecque tested the breakers in the breaker box while they were carrying a full load. The experiment done in the hearing room was conducted in an air-conditioned environment with no testing done regarding the wall outlet utilized to run the Simpson meter and with no load being carried by the circuit breakers. Further, the fact that the Simpson meter showed 119 volts is corroborative of LaBrecque's testimony regarding his findings at the job site. The testimony is clear that the loss of one volt across a circuit breaker is well beyond permissible limits and indicates that the breaker is bad.
Petitioner's expert admitted that he had never used the more modern state-of-the-art equipment that was used by LaBrecque to test the breakers, was unable to define what an analog meter is although the Simpson meter he was using was an analog meter, and was unable to answer the basic question of how many watts are in a volt. In short, the weight of the expert testimony regarding the operability of the breakers replaced by LaBrecque comes from Respondent's witnesses that the breakers were not working properly, and Petitioner has failed to offer any credible evidence that the breakers were functioning properly. Even if the breakers admitted in evidence at the final hearing in this cause which were tested by Petitioner's witness at the final hearing had been properly admitted in evidence, the tests conducted during the final hearing were meaningless.
It is true that it cost the customer more to have breakers replaced then it would have cost the customer to not have them replaced. It is found, however, that the replacement of the breakers was authorized by Mrs. Bekiempis and that, in fact, the replacement of the breakers was necessary. Accordingly, Petitioner has failed to prove that Respondent violated Section 489.553(1)(m), Florida Statutes, as alleged in Count Thirteen of the Administrative Complaint.
Count Fourteen charges Respondent with violating Section 489.533(1)(f), Florida Statutes, by charging the customer for five breakers that did not need to be replaced, and failing to properly supervise construction activities he was responsible for. As discussed, infra, the breakers replaced by LaBrecque did need to be replaced, and Petitioner has failed to proved its allegation. Further, Petitioner's allegation that Respondent failed to properly supervise construction activities he was responsible for fails for the reasons discussed, infra, in that LaBrecque was a licensed journeyman, and Petitioner has failed to allege or prove what supervision Respondent was required to have exercised that he did not exercise.
Counts Fifteen through Eighteen were voluntarily dismissed by Petitioner at the commencement of the final hearing in this cause.
Counts Nineteen and Twenty relate to the July 3, 1990, revocation of Respondent's permitting privileges for a period of one year by the City of Tampa Unified Construction Trades Board. Count Nineteen alleges that Respondent violated Section 489.533(1)(n), Florida Statutes, by having his
permitting privileges revoked by the City of Tampa. Petitioner has proven that Respondent's permitting privileges were revoked as alleged in Count Nineteen.
However, Section 489.533(1)(n), Florida Statutes, specifies that the disciplinary action by the municipality must be for an act which is a violation of Section 489.533(1) and further that such disciplinary action must be reviewed by Petitioner before Petitioner can take disciplinary action of its own based upon that disciplinary action by a municipality. In support
of its position, Petitioner alleges that the Tampa disciplinary action resulted from AAA dispatching an unlicensed individual to perform repair work at the Cruey residence, that AAA proceeded and/or completed the contracting work without first obtaining all applicable permits and inspections, that AAA violated state or local laws which directly relate to the practice of contracting, and that AAA committed fraud, deceit, negligence and misconduct in the practice of contracting, all in relation to the Cruey job.
It has been found in this Recommended Order that the work was performed by Alton LaBrecque, a licensed journeyman. It has further been found that the work was performed on a 1-hour emergency basis on a Saturday during a storm because the customer had no power and his entire electrical service had been torn off the outside of his house by a huge oak tree felled by a tornado during that storm. It has been found that LaBrecque proceeded to apply for the permit on the following Monday, the next business day after the work was performed. It has further been found that the City of Tampa delayed LaBrecque from obtaining that permit. Since none of the ordinances of the City of Tampa or of Hillsborough County were offered in evidence by Petitioner, it cannot be found that the work done at the Cruey residence violated any of those ordinances. The bulk of the testimony offered by Petitioner in support of this last allegation is hearsay testimony only. Although the Chief Electrical Inspector for the City of Tampa testified that a permit can be pulled after-the-fact for emergency repair work done over the weekend, he also testified that he could not be more specific regarding the terms of that ordinance since he was not that familiar with it. LaBrecque did, in fact, obtain a permit in spite of the City's efforts to delay him in doing so, and the evidence indicates that the City has refused to inspect the Cruey job.
It is also clear that the proceedings which resulted in the disciplinary action taken by the City of Tampa were based on substantial amounts of hearsay evidence and that Respondent was not permitted to present evidence in his defense including photographs of the actual work accomplished so that the Unified Construction Trades Board could see the work that had been performed at the Cruey residence. Although Petitioner has proven that disciplinary action was taken by a municipality against Respondent, a review of that disciplinary action reveals that it failed to afford Respondent his due process rights. Further, Petitioner has failed to prove that Respondent was disciplined for an act that is a violation of Section 489.533.
Count Twenty alleges that Respondent violated Section 489.533(1)(f), Florida Statutes, by grossly overcharging the customer for work. This Count clearly relates to the Cruey job although Petitioner attempted to expand this allegation during the final hearing by arguing that Respondent had engaged in a pattern of overcharging the customers involved in the allegations in this Administrative Complaint. First, the Administrative Complaint does not
charge Respondent with a pattern of overcharging. Moreover, the Reiders testified that they had no complaints regarding the price charged to them. Mary Scalza was unhappy with the bill for the work done at Rub-A-Dub, she stopped payment on her check, and Respondent refunded the cash balance of her payment.
Respondent has not been paid for any of the work performed at Rub-A-Dub.
Heidi Bekiempis attempted to stop payment on her credit card but was unsuccessful in doing so. The amounts charged to Heidi Bekiempis for labor were identical to the price she agreed to pay when she hired AAA and the costs of the parts utilized at that job are itemized on the statement rendered to Heidi Bekiempis. Clarence Cruey did stop payment on his credit card, and AAA has not been paid for the extensive work performed at the Cruey residence.
Second, Petitioner offered no evidence to support its allegation of overcharging. Petitioner offered no testimony as to what other contractors charge for the same work or as to what the standard charges in the electrical industry might be. One of Petitioner's witnesses did testify, in general terms, that he sets his own prices for the work that he does and that the other people he knows in the industry all set their own prices. On the other hand, Respondent testified that his rates are in line with those rates charged by other electrical contractors for labor performed by them and that the prices charged for parts were those prices contained in the standard parts pricing books used in the industry. Petitioner has, therefore, failed to prove that Respondent is guilty of violating Section 489.533(1)(f), Florida Statutes, as alleged in Count Twenty of the Administrative Complaint filed in this cause.
In short, Petitioner has failed to offer that level of proof required before Respondent can be found guilty of committing any of the violations alleged in the Administrative Complaint filed in this cause. To the extent that Petitioner has failed to plead or to prove the policies of the Electrical Contractor's Licensing Board regarding the ambiguous meaning of several of the statutory violations alleged, it must be remembered that Respondent's license to practice electrical contracting in the State of Florida has been suspended since September 12, 1990. There are few allegations in the Administrative Complaint which would justify disciplinary action of a suspension for a longer period of time than Respondent has already served.
Based upon the foregoing Findings of Fact and Conclusions of Law, it
is
RECOMMENDED that a Final Order be entered finding Respondent not
guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against Respondent in this cause.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of November, 1990.
LINDA M. RIGOT
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 20th day of November, 1990.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-6172
Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.
Petitioner's proposed findings of fact numbered 2-5, 7, 10, 16, 17, 20, 23, and 25-27 have been adopted either verbatim or in substance in this Recommended Order.
Petitioner's proposed findings of fact numbered 6, 9, 11-15, 18, 19, 22, and 28 have been rejected as not being supported by the weight of the credible evidence in this cause.
Petitioner's proposed finding of fact numbered 8 has been rejected as being contrary to the weight of the evidence in this cause.
Petitioner's proposed findings of fact numbered 21, 24, and 29 have been rejected as being unnecessary for determination of the issues herein.
Respondent's proposed findings of fact numbered 1, 4, 4.1, 5-7.5, 7.9, 7.10, 7.13-7.16, 8, 8.1, 8.3-8.6, 8.8, 8.9, 9.0, 9.2-9.7, 9.10, 9.12-9.14, 9.16- 9.20, 10, 10.1, 10.3, 10.4, 10.6-10.19, 10.21-10.23, 12-12.8, 13.9, and 13.10 have been rejected as not constituting findings of fact but rather as constituting conclusions of laws, recitation of the testimony, or argument of counsel.
Respondent's proposed findings of fact numbered 2, 3, 7.6-7.8, 7.11, 7.12, 8.2, 8.10-8.12, 9.1, 9.8, 9.11, 9.15, 10.20, 11-11.2, 13.2, 13.4-13.8, and
13.11 have been adopted either verbatim or in substance in this Recommended Order.
Respondent's proposed finding of fact numbered 8.7 has been rejected as not being supported by the weight of the credible evidence in this cause.
Respondent's proposed findings of fact numbered 10.2, 10.5, 13, 13.1, and 13.3 have been rejected as being unnecessary for determination of the issues herein.
COPIES FURNISHED:
Daniel O'Brien Executive Director
Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2
Jacksonville, Florida 32202
Robert G. Harris, Esquire
Department of Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
David M. Gaspari, Esquire Adams, Coogler, Watson & Merkel Suite 1600, NCNB Tower
1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069
Neil F. Garfield, Esquire
World Executive Building, Suite 333 3500 North State Road Seven
Fort Lauderdale, Florida 33319
Scott Anderson, Esquire 2033 Main Street, Suite 402
Sarasota, Florida 33427
Kenneth E. Easley General Counsel
Department of Professional Regulation Northwood Centre
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
| Issue Date | Proceedings |
|---|---|
| Nov. 20, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 20, 1990 | Recommended Order | Failure of proof that electrical contractor under emergency suspension order was guilty of any allegations in 20 count administrative complaint |
