STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-2963

)

)

RONALD J. GURNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on October 2, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Robert G. Harris, Esquire

Senior Attorney

Department of Professional Regulation 1620 Medical Lane, Suite 148

Fort Myers, Florida 33907

For Respondent: Ronald J. Gurney, pro se

11201 Southwest 55th Street Box 79

Miramar, Florida 33025 STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent violated the provisions of Section 489.533(1)(n), Florida Statutes, and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated November 21, 1990, petitioner charged that respondent, a registered electrical contractor, had violated the provisions of Subsection 489.533(1)(n), Florida Statutes, by having been disciplined by a municipality or county for an act that is a violation of Section 489.533, Florida Statutes. Respondent filed an election of rights which disputed the allegations of fact contained in the administrative complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called no witnesses, but its exhibits 1-7 were received into evidence. Petitioner also offered into evidence its exhibit 8,

the transcript of the November 21, 1989, hearing before the Metropolitan Dade County Construction Trades Qualifying Board which formed the basis for that county's disciplinary action against respondent. Respondent objected to such exhibit, and ruling was deferred until entry of this recommended order. Upon consideration it is concluded that the offered exhibit is hearsay, and that the testimony of the witnesses who testified at that proceeding is not admissible for its truth since it would not be admissible over objection in a civil action. Section 120.58(1)(a), Florida Statutes, and Section 90.804(2)(a), Florida Statutes (requiring a demonstration of the "unavailability" of the witness before such testimony is admissible in a subsequent proceeding). It is, however, probative of the charges made and the action taken by that public body. Section 90.803(8), Florida Statutes. Accordingly, for such limited purpose, petitioner's exhibit 8 is admitted.

The transcript of hearing was filed October 28, 1991, and the parties were granted leave until November 7, 1991, to file proposed findings of fact.

Petitioner elected to file proposed findings of fact, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all time material hereto, Respondent, Ronald J. Gurney, has been registered as an electrical contractor in the State of Florida, having been issued license number ER0004532, and held certificates of competency as an electrical contractor issued by Dade County and Broward County, Florida.

   
   

2. By letter of July 25, 1989, Metropolitan Dade County charged the respondent with violating various sections of Chapter 10, Dade County Code. Specifically, such letter charged that between August 22, 1988, and June 16, 1989, with regard to jobs at 1520 Euclid Avenue and 531-41 16th Street, Miami Beach, Dade County, Florida, the respondent did:

   
   

   . . . violate Section 4505.5(a) of the South Florida Building Code (SFBC) by failing to obtain the mandatory rough inspection of work performed under Permit . . . said violation evidencing a failure to maintain the affirmative conditions of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County.

   . . . unlawfully violate Section 10-22(b) of the Code of Metropolitan Dade County . . . [by] abandon[ing] without legal excuse . . . [such] . . . electrical job[s]. . . .

   . . . unlawfully violate Section 10-22(g) of the Code of Metropolitan Dade County . . .

   [by] fail[ing] to fulfill . . . [his] . . .

   contractual obligation to complete . . .

   [such] . . . electrical job. . . .

   
   

   Such letter further advised respondent that a formal hearing would be held on September 5, 1989, before the Construction Trades Qualifying Board (CTQB) to consider such charges, and what, if any, disciplinary action should be taken.

3. On September 5, 1989, respondent appeared for the hearing, as scheduled, however, because the complaining witnesses did not appear, the CTQB continued the hearing. Thereafter, the hearing was rescheduled for November 21, 1989, and respondent did not appear. Notwithstanding, the CTQB proceeded with the hearing, and following its consideration of the evidence found that respondent had violated Sections 10-16(a), 10-22(b) and 10-22(g), Dade County Code, and issued a reprimand, fined respondent $2,500.00, suspended his certificates for three years, and revoked his certificates.

   
   

4. By letter of December 1, 1989, Dade County advised respondent of the foregoing decision, and advised him of his right to appeal the decision of the CTQB. Respondent did not appeal such decision but, rather, filed a motion, through counsel, with the CTQB to vacate its decision based on respondent's contention that he did not receive notice of the November 21, 1989, hearing. Such motion was denied on January 9, 1990, and respondent did not appeal or otherwise seek review of such decision.

   
   

5. At hearing, respondent offered proof, which is credited, that as a consequence of the action taken by Dade County he lost his position as Chief Electrical Inspector for the City of Hialeah; a position that paid $50,000.00 a year.

   
   

6. Here, there was no suggestion or proof that respondent had previously been the subject of any prior disciplinary proceeding. To the contrary, the only proof of record on this issue was offered by respondent, and demonstrated that the action brought by Dade County was his first offense.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. At issue in these proceedings is whether respondent's electrical contracting license should be disciplined for having been previously disciplined by a municipality or county. In cases of this nature, the petitioner bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

9. Pertinent to this case, Section 489.533(1)(n), Florida Statutes, provides that the following shall constitute grounds for disciplinary action:

   
   

   Being disciplined by any municipality or county for an act that is a violation of this section. . . .

   
   

   Also pertinent to this case, section 489.533(1) sets forth the following acts that constitute a violation of such section:

   
   

   1. Willfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipality or county thereof.

      * * *

      (p) Abandoning a project which the contractor is engaged in or is under contractual obligation to perform. The

      failure of a contractor to perform work without just cause for 90 consecutive days shall create a presumption that the contractor has abandoned the job.

      * * *

      (m) Committing financial mismanagement or misconduct in the practice of contracting

      that causes financial harm to a customer. . . .

      
      

10. Here, petitioner has demonstrated by clear and convincing evidence that respondent was disciplined by a municipality or county for an act that is in violation of Section 489.533, Florida Statutes. Succinctly, the acts for which respondent was found to have committed a violation of Sections 10-16(a), 10-22(b), and 10-22(g), Dade County Code, would have constituted a violation of Section 489.533(i), (p), and (m), Florida Statutes.

    
    

11. In considering an appropriate penalty in the instant case, the guidelines established by Rule 21GG-10.002, Florida Administrative Code, have been considered. Pertinent to this case, Rule 21GG-10.002(14) provides the following recommended penalty for a violation of Section 489.533(1)(n), Florida Statutes:

$250 fine to one (1) year suspension, suspension may be conditioned upon reinstatement of local license.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty

of having violated the provisions of Section 489.533(1)(n), Florida Statutes, which imposes an administrative fine against him in the sum of $250.00, and which places his license on probation for a period of two years.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of November 1991.

WILLIAM J. KENDRICK

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 15th day of November 1991.

APPENDIX TO RECOMMENDED ORDER

Petitioner's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraph 1.

3-7. Addressed in paragraph 2, otherwise rejected as unnecessary detail.

1. Addressed in paragraph 3.

2. Rejected as not supported by competent proof. 10-14. Addressed in paragraph 3.

15-19. Addressed in paragraph 4.

COPIES FURNISHED:

Robert G. Harris, Esquire Senior Attorney

Department of Professional Regulation 1620 Medical Lane, Suite 148

Fort Myers, Florida 33907

Ronald J. Gurney

11201 Southwest 55th Street Box 79

Miramar, Florida 33025

Daniel O'Brien, Executive Director Electrical Contractors Licensing Board Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002963

Orders for Case No: 91-002963