STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6543

)

TOM GARDNER, )

)

Respondent. )

) TOM GARDNER )

)

Petitioner, )

)

vs. ) CASE NO. 91-6547

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on May 21, 1992, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Andrew Kenneth Levine, Esquire

Office of Legal Affairs

562 Fletcher Building

200 East Gaines Street Tallahassee, Florida 32399-0300

For Respondent: John E. Swisher, Esquire

2950 5th Avenue North

St. Petersburg, Florida 33713 STATEMENT OF THE ISSUES

1. Whether Respondent/Petitioner, Tom Gardner, acted as a Fire Protection Systems Contractor II without due qualification.

   
   

2. Whether the Department of Insurance and Treasurer properly denied Respondent's application for certification as Fire Protection Systems Contractor II.

PRELIMINARY STATEMENT

By its Administrative Complaints filed herein, signed May 20, 1991, and its letter of denial to Respondent/Petitioner, Tom Gardner, dated March 27, 1991, the Department of Insurance and Treasurer seeks to impose disciplinary action against Respondent's Contractor IV license and denied his application for certification as a Fire Protection Systems Contractor II based on its investigation that Respondent/Petitioner performed the work of a Contractor II while he was only licensed as a Contractor IV. Based on its Amended Administrative Complaint filed herein, the Department of Insurance and Treasurer seeks the revocation of Respondent/Petitioner's Contractor IV license.

Following the filing of the Administrative Complaint and the Letter of Denial, Respondent/Petitioner requested formal hearings and this matter was transferred to the Division of Administrative Hearings on October 9, 1991. This case was originally set for hearing for December 18, 1991, but was continued for hearing on February 25, 1992, to allow Respondent/Petitioner an opportunity to obtain counsel. Thereafter, the Department of Insurance and Treasurer filed a Motion to Amend its Administrative Complaint adding Counts II - IV to the Administrative Complaint. The amendment was allowed and Respondent/Petitioner moved for a second continuance, which was granted.

At the hearing, the Department of Insurance and Treasurer presented the testimony of Mike Bonfield, Leisure Services Director for the City of Gulfport; Laura Brown, License and Permit Supervisor for the City of St. Petersburg; Terry Barrow, Fire Protection Specialist Supervisor for the Department; Philip Gruda, Special Investigator for the Department; James Hasbrouck, Chief Mechanical Inspector for the Pinellas County Building Department; and Dennis Dewar, Executive Director of the Florida Fire Sprinkler Association.

Respondent/Petitioner testified on his behalf and presented the testimony of Warner Bouton, Sherry Caster, Ronald Cox, and Fred Hagan. The Department introduced exhibits 1-12 which were received in evidence at the hearing. A transcript of the hearing was filed on June 4, 1992, and the parties submitted proposed recommended orders on June 15, 1992. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record complied herein, the following relevant facts are found.

FINDINGS OF FACT

1. The Department of Insurance and Treasurer (Department), Petitioner/Respondent herein, is the state agency responsible for the regulation, management and certification of fire protection systems contractors. In furtherance of its duties as regulator, the Department filed an Administrative Complaint against Respondent/Petitioner Gardner calling into question conduct by Gardner as a Contractor IV and issued a letter denying him certification as a Contractor II based upon that conduct.

   
   

2. On May 18, 1988, Gardner initially applied for certification as a Contractor II. Gardner requested, and was scheduled to take the Contractor II examination for certification on July 11, 1988, however, he never completed that examination. This was evidenced by a blank examination and answer sheet which had been prepared for and assigned to him. Further evidence of Gardner having failed to sit for the Contractor II examination is a confirmation letter from him explaining that he failed to appear at the examination. Gardner was offered a second opportunity to take the examination for a Contractor II certificate

   whereupon he replied that he would like to sit for the September 19, 1988 examination or the October 10, 1988 exam. Gardner was unable to sit for the September 19, 1988 examination as he failed to qualify under the Department's applicable two-week prior notice rule which was referenced in the letter of inquiry sent to him asking of the dates that he was available to sit for the exam. Gardner was never rescheduled to take the Contractor II examination during October and he opted, instead, to be examined for Contractor IV credentials.

   
   

3. During August 1988, Gardner applied for certification as a Contractor IV and he sat for that exam on October 10, 1988.

   
   

4. The Department issued Gardner his license as a Contractor IV on January 12, 1989. From that date to the present time, he has been continuously licensed as a Contractor IV. Gardner has not submitted any renewal fee or form for licensure for any class other than Class IV.

   
   

5. Starting in 1988, Gardner, or agents on his behalf, began altering certificates of competency issued by the Department and presented them to various local building agencies, including the Cities of St. Petersburg and Gulfport, indicating that he was licensed as a Contractor II. One altered certificate submitted by Gardner indicating Contractor II licensure status carried an issue date of July 1, 1988, a date prior to the time when Gardner was scheduled to sit for his first examination for a Contractor II, i.e., July 11, 1988. Additionally, the license number shown on that altered certificate carried the control number associated with the contractor licensure of Ronald Cox, a witness who testified in this proceeding. Other indicia of the fact that that certificate was altered is that the print (font) of Gardner's name and address information was different from the other print on that certificate.

   That fact is significant since the Department has never used more than one certificate printer which has only one font. This procedure of printing certificates has been uniform during the entire nine-year life of the Department's computerized licensing program.

   
   

6. Gardner was able to obtain permits based on the altered certificates that he submitted to the City of St. Petersburg. Some of the permits that he obtained as a result of that altered certificate were of the type work that only a Contractor II could legally perform as the work was of a commercial nature in buildings occupied by the public at large.

   
   

7. Other instances of Gardner altering certificates of competency issued to him was one certificate with the initial date of August 8, 1989, which was a renewal certificate of competency showing licensure as a Contractor IV. The type and class code was "7-18" which correlated with that of a renewal for a Contractor IV with a document control number shown as FM00208. The language shown on the certificate identified the limited activities which could be performed by a Contractor IV. However, the certificate that Gardner presented to various governmental officials upon request, which certificate was altered, indicated the exact same information as above including document control number, type and class code, but included language which explained the type of activities attributed to Contractor II certification. Gardner also showed a similar altered exhibit to the Department's special investigator, P. Gruda, during his investigation of Respondent.

   
   

8. From 1988 to the present, Gardner has been engaged solely in installing fire protection systems in commercial-type establishments. Some of his commercial activities included bidding on the installation of commercial

   sprinkler systems at the Gulfport Casino, a 15,000 square foot ballroom dance hall in Gulfport, Florida, and the Sir Speedy Printing building in Clearwater, Florida, on January 23, 1991.

   
   

9. Gardner bid on a project for installation of a fire-sprinkler system at the Casino building in Gulfport, Florida, which included submitting a check on August 23, 1991, for the bid. Gardner was the low bidder, however, he did not receive the contract award because Gulfport City officials checked his licensure status and was able to determine that he was not licensed by the Department as a Contractor II, a requirement for all bidders. 1/

   
   

10. Throughout the process, Gardner was able to furnish original documentation associated with Contractor IV certifications dating back to 1988. Likewise, throughout the Department's investigations, Gardner was only able to provide copies, which were obviously altered, designating him certified as a Contractor II.

    
    

11. On February 5, 1991, Gardner submitted an original application for licensure as a Contractor II. That application included materials and fees consistent with an original application. Gardner made no indication to the Department that he was previously licensed as a Contractor II.

    
    

12. Gardner's application for certification as a Contractor II was denied by the Department by letter dated March 27, 1991 citing his involvement with construction activities without proper license by the Department. Given the facts and circumstances found herein, the Department's denial was proper.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

15. The authority of the Department of Insurance and Treasurer is derived from Chapter 633, Florida Statutes.

    
    

16. The Respondent/Petitioner, Tom Gardner, is licensed as a Fire Protection System Contractor, Class IV.

17. Subsection 633.021, Florida Statutes, defines "Contractor IV" as: "Contractor IV" means a contractor whose busi-

    ness is limited to the execution of contracts requiring the ability to intelligently lay out, fabricate, install, inspect, alter, repair, and service automatic fire sprinkler systems for detached one-family dwellings, detached two-family dwellings, and mobile homes, excluding preengineered systems and

    excluding single family homes in cluster units, such as apartments, condominiums, and adult congregate living facilities or any building that is connected to other dwellings.

    
    

    as:

18. Subsection 633.021, Florida Statutes, defines the term "Contractor II"

    
    

    "Contractor II" means a contractor whose busi- ness is limited to the execution of contracts requiring the ability to intelligently lay out, fabricate, install, inspect, alter, repair,

    and service water sprinkler systems, water spray systems, foam-water sprinkler systems, foam-water spray systems, standpipes, combi- nation standpipes and sprinkler risers, all piping that is an integral part of the system beginning at the point where the piping is

    used exclusively for fire protection, sprinkler tank heaters, air lines, thermal systems used in connection with sprinklers, and tanks and pumps connected thereto, excluding preengineered systems.

    
    

19. It is evident from the above that the definition of "Contractor II"

    involves commercial and residential work whereas the term "Contractor IV" contemplates only residential work. As such, the activities which may be performed by a Contractor II also include the activities which may be performed by a Contractor IV.

    
    

20. Proper certification is essential in the fire protection industry. Sections 633.521 and 633.539(1)(a), Florida Statutes.

    
    

21. It is unlawful for any person to engage in the business or act in the capacity of a contractor without having been duly certified and holding a current annual certificate. Section 633.541, Florida Statutes.

    
    

22. The Department demonstrated, by clear and convincing evidence, that Gardner was never licensed by the Department as a Contractor II. Despite being licensed to act in a capacity of a Contractor IV, Gardner, during times material, repeatedly acted in the capacity of a Contractor II in clear disregard of the above-cited statutes. Based on the foregoing, Gardner engaged in acts and proscribed conduct within the preview of Subsections 633.521 and 633.539(1)(a), 633.547(2)(i), and 633.547(2)(a), Florida Statutes. Here, Gardner engaged in the business of a Contractor II without being so qualified, nor having a person properly qualified to do business at the time that he engaged in Contractor II Fire Systems contracting. Respondent's conduct cannot now be remedied by submitting the credentials of a properly licensed qualifier, after the fact.

    
    

23. Based on Gardner's proscribed conduct in his capacity as a Contractor IV licensee, the Department properly denied his application for certification as a Contractor II.

    
    

24. Gardner never demonstrated his entitlement to be determined eligible for certification as a Contractor II, as was his burden. See, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

25. For all of these reasons, it is herein determined that Gardner engaged in conduct violative of Subsections 633.534(1), 633.539(1)(a), 633.541(1), and 633.547(2)(a) and (i), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended:

1. The Department of Insurance and Treasurer issue a final order revoking Respondent/Petitioner's license as a Fire Protection Systems Contractor IV.

   
   

2. Enter a final order denying Respondent/Petitioner's application for certification as a Contractor II.

RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of July 1992.

JAMES E. BRADWELL

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 30th day of July 1992.

ENDNOTES

1/ After the bid was in process for the Casino project, Gardner attempted to qualify another individual who was properly licensed. That attempt was not relevant as it was untimely.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6543

Rulings on Petitioner Department of Insurance and Treasurer's Proposed Recommended Order:

Paragraph 2, adopted as modified, Paragraphs 2, 4 and 11, Recommended Order. Paragraph 3, adopted as modified, Paragraph 7, Recommended Order.

Paragraph 4, rejected as irrelevant or argument and not proper findings of fact. Paragraph 5, rejected, irrelevant.

Paragraph 6, adopted as modified, Paragraphs 4, 5 and 6, Recommended Order. Paragraph 7, adopted as relevant, Paragraph 5, Recommended Order.

Paragraph 8, adopted as relevant, Paragraph 5, Recommended Order. Paragraph 9, adopted as modified, Paragraph 2, Recommended Order.

Paragraph 10, adopted as modified, Paragraphs 3 and 4, Recommended Order. Paragraph 11, adopted as modified, Paragraph 4, Recommended Order.

Paragraph 18, rejected, argument.

Rulings on Respondent Tom Gardner's Proposed Recommended Order.

Paragraph 1, adopted as modified, Paragraph 1, Recommended Order. Paragraph 2, adopted as modified, Paragraph 12, Recommended Order. Paragraph 5, 6, 7 and 8, rejected, irrelevant and not probative.

Paragraph 15, 16 and 17, rejected, irrelevant and not probative. Paragraph 18, rejected, irrelevant and not probative.

Paragraphs 19 and 20, rejected, irrelevant and not probative.

Paragraphs 21-28, rejected, contrary to the weight of evidence, Paragraph 9, Recommended Order.

Paragraph 29, rejected, contrary to the weight of evidence, Paragraph 9, Recommended Order.

Paragraph 30, rejected, contrary to the evidence, Paragraph 2, Recommended Order.

Paragraph 31, rejected, contrary to the evidence, Paragraphs 2 and 4, Recommended Order.

Paragraph 32, rejected, irrelevant.

Paragraph 33, rejected, contrary to the weight of evidence, Paragraph 4, Recommended Order.

COPIES FURNISHED:

Andrew Kenneth Levine, Esquire Office of Legal Affairs

562 Fletcher Building

200 East Gaines Street Tallahassee, Florida 32399-0300

John E. Swisher, Esquire 2950 5th Avenue North

St. Petersburg, Florida 33713

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil General Counsel

Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399-0300

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: 91-006543

Orders for Case No: 91-006543