STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP RAY FIFE, )

)

Petitioner, )

)

vs. ) CASE No. 92-2480

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on June 27, 1992 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Davisson F. Dunlap, Esquire

and William W. Blue, Esquire Post Office Box 13527 Tallahassee, Florida 32317 3527

For Respondent: Jeff G. Peters, Esquire

Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399 1000 STATEMENT OF THE ISSUES

Whether Petitioner was qualified to sit for the electrical contractors licensing examination on January 27, 1992.

PRELIMINARY STATEMENT

After being presented with the necessary documentation to sit for the electrical contractors' licensing examination and subsequent to taking this examination, Phillip Ray Fife, Petitioner, was notified by the Electrical Contractors Licensing Board that his application was disapproved because he had failed to show three years experience in the trade as an electrical contractor or alarm contractor or in a responsible management position with an electrical contractor or alarm contractor; or a showing that Fife had at least 6 years comprehensive specialized training, education, or experience associated with an electrical contracting business. By Request for Formal Hearing, Fife challenged this determination and these proceedings followed. During pretrial proceedings Respondent's motion to quash subpoenas issued to members of the Electrical Contractors Licensing Board was granted and Petitioner's motion to require Respondent to disclose the grade Fife made on the examination was denied.

At the hearing, Petitioner called two witnesses, including himself, Respondent called one witness, and 31 exhibits were admitted into evidence. Proposed findings have been submitted by the parties. Treatment accorded proposed findings is as noted in the Appendix attached hereto and made a part hereof. After having fully considered all evidence presented, I submit the following.

FINDINGS OF FACT

1. Prior to September 12, 1991, Verda Dupuy, manager of administrative services for the Newtron Group, contacted the Florida Electrical Contractors Licensing Board to obtain information needed to apply for licensure as a statewide electrical contractor on behalf of Phillip Ray Fife, Petitioner. Fife is employed by TRIAD Electric, a wholly owned subsidiary of Newtron Group. Both of these companies are out-of-state corporations which perform electrical contracting services in the United States. Newtron Group has annual revenues of some $80 million dollars and TRIAD has annual revenues of some $30 million dollars.

   
   

2. An application packet was provided pursuant to this request and on September 12, 1991 Fife applied to the Board for licensure as an unlimited electrical contractor. The application packet did not include either a copy of chapter 21GG-5, Florida Administrative Code or Chapter 489, Florida Statutes.

   
   

3. On October 31, 1991 the Application Committee met and considered Petitioner's application. James P. Williams, who also testified in these proceedings, was chairman of the Committee who reviewed Petitioner's application and recommended denial to the Board.

   
   

4. By letter dated November 21, 1991 David O'Brien, Executive Director of the Electrical Contractors Licensing Board, notified Petitioner that his application had been denied by the Board for the following reasons:

   
   

   21GG 5.003(1) lacks three years proven responsible management experience and/or; six years of comprehensive, specialized training, education, or experience associated with an electrical or alarm system contracting business.

   21GG 5.005 - Failure to submit any of the items required by the rule. Your business entity portion lacks a Florida Corporate Charter (Certificate of Good Standing). Dunn and Bradstreet Credit Report not acceptable.

   
   

5. Upon receipt of this information Dupuy, on behalf of Petitioner, contacted O'Brien several times to get specific details of the documentation desired. Since Petitioner was attempting to qualify for the January 27, 1992 examination time became important.

   
   

6. After receiving additional clarification from O'Brien, the business entity portion was satisfied. In response to the demand for evidence that Petitioner had management experience a summary job description of Petitioner's responsibilities as a project manager for TRIAD was sent by FAX to O'Brien (Exhibit 8).

   
   

7. As a result of these several telephone conversations and a listing of the duties of a project manager for TRIAD, O'Brien notified Ed James, Bureau of

   Examination Services, that Fife was authorized to sit for the January 27, 1992 examination and an examination packet containing a pass to take the exam was sent to Fife.

   
   

8. On January 27, 1992 Fife travelled to Tampa and took the exam. Results of this exam have not been provided to Petitioner.

   
   

9. On February 11, 1992 the Board met to again consider Petitioner's application. In addition to the summary of his job responsibilities as project manager the application file showed that Petitioner was licensed as an electrical contractor in the states of Arkansas, California, Nevada and Tennessee. However, the Board concluded these licenses may have been for a master or journeyman electrician rather than as a electrical contractor, and the summary job description submitted was not conclusive of Petitioner's management experience.

   
   

10. On March 2, 1992, O'Brien mailed a second notice of denial to Petitioner (Exhibit 9). This letter states the application was denied for the following reasons:

    
    

    21GG 5.003(1) Applicant must show that he has three years proven experience in the trade as an electrical contractor or alarm contractor or in a responsible management position with an electrical contractor or an alarm contractor. Please refer to definitions: 21GG- 5.001(3).

    489.511 Has at least six years of comprehensive specialized training, education, or experience associated with an electrical or alarm system contracting business. Informal exposure to the trade wherein knowledge and skill is obtained.

    
    

11. At the hearing petitioner presented a plethora of evidence attesting to his approximately 20 years experience in the electrical contracting business showing he executed contracts on behalf of TRIAD and Newtron Group, that he hired and fired employees, that as project manager he exercise full control over the projects including approving amendments and changes in the contracts, opened local bank accounts on which he paid the employees working on the project, etc. Petitioner's proposed findings 13-32 are adopted as facts presented to demonstrate Petitioner's experience in the field of electrical contracting.

    
    

12. At the conclusion of Petitioner's case, James A. Williams, Respondent's expert who considered Petitioner's initial application and testified in these proceedings, acknowledged that licensure as an electrical contractor in another state with similar requirements as Florida would qualify Petitioner to sit for the examination in Florida; and that had he been privy to the testimony presented at this hearing, when he initially considered Petitioner's application, the application would have been approved.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

14. In order to qualify to take the examination for a statewide electrical contractor's license, the applicant must comply with Section 489.511(2)(c), Florida Statutes, which requires the applicant to meet one of the following criteria:

    
    

    1. Has at least 3 years proven management experience in the trade or education equivalent thereto, or a combination thereof, but not more than one half of such experience may be educational equivalent;

    2. Has at least 6 years of comprehensive specialized training, education, or experience associated with an electrical or alarm system contracting business; or

    3. Has been licensed for 3 years as an engineer.

       
       

15. Rule 21GG-5.003, Florida Administrative Code, a copy of which was never forwarded to Petitioner, provides in pertinent part: (Experience of Qualifying Agent)

    
    

    ... The qualifying agent shall be required to demonstrate that he possesses the requisite skills, knowledge, and experience in the trade as an electrical or alarm contractor by forwarding the following for the Board:

    1. A complete list of contracts by the qualifying agent underway at the time of filing, along with a representative list of electrical contracts or alarm contracts completed in the three (3) years immediately preceding the date of filing. The list shall include the description of each job, location, owner, architect or engineer, and general contractor.

    2. Notarized statements prepared and signed by some person or persons other than the qualifying agent listing chronologically the active experience of the qualifying agent in the trade, including the name and address of the employers, and dates of employment along with copies of W-2 forms.

    
    

16. Had the Petitioner been provided with a copy of Rule 21GG-5.003, Florida Administrative Code, in his application packet he would have known specifically the type information desired by the Board to establish his qualifications to sit for the examination, and both parties hereto very likely would have avoided the costs and time involved in these proceedings.

    
    

17. Although the Executive Director of the Board is without authority to grant final approval to an applicant, it is significant that, after talking several times to Dupuy regarding this application and receiving the summary of job responsibilities of a project manager for TRIAD, O'Brien concluded that Petitioner was fully qualified to sit for the January 1992 examination and had authorization to take the exam forwarded to Fife.

    
    

18. From the foregoing, it is concluded that Phillip Ray Fife was fully qualified by experience and training to sit for the January 27, 1992 examination for licensure as an electrical contractor. Since he did, in fact, take this examination, his examination scores should be released, and if he received a passing grade, his license as a statewide electrical contractor should be issued.

RECOMMENDATION

It is RECOMMENDED that a Final Order be entered finding Phillip Ray Fife fully qualified by experience and training to sit for the electrical contractors examination. It is further

RECOMMENDED that Phillip Ray Fife's examination grades be released; and, if he passed the January 27, 1992 examination, that he be issued a statewide license as an electrical contractor.

DONE and ENTERED this 20th day of July, 1992, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 July, 1992.

APPENDIX TO RECOMMENDED ORDER

Proposed findings submitted by Petitioner are accepted. Those proposed findings not included in the Hearing Officer's findings of fact were deemed unnecessary to the conclusions reached.

Proposed findings submitted by Respondent are accepted except as noted below. Those proposed findings neither included in the Hearing Officer's findings nor noted below were deemed unnecessary to the conclusions reached.

1. Rejected.

2. Rejected insofar as Petitioner was fully aware of the reasons his application was rejected. No letter from the Board listed the documentation required by Rule 21GG-5.003(1)(a), Florida Administrative Code.

Copies furnished:

DAVISSON F DUNLAP ESQ WILLIAM W BLUE ESQ

PO BOX 13527

TALLAHASSEE FL 32317 3527

JEFF G PETERS ESQ DEPT OF LEGAL AFFAIRS

THE CAPITOL SUITE 1603 TALLAHASSEE FL 32399 1000

DANIEL O'BRIEN/EXECUTIVE DIRECTOR FLORIDA ELECTRICAL CONTRACTORS

LICENSING BOARD PO BOX 2

JACKSONVILLE FL 32202

JACK McRAY ESQ GENERAL COUNSEL

DEPT OF PROFESSIONAL REGULATION 1940 N MONROE ST

TALLAHASSEE FL 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: 92-002480

Orders for Case No: 92-002480