STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5080

)

HENRY C. ROBERTSON, )

)

Respondent. )

)

RECOMMENDED ORDER

On December 15, 1994, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116 For Respondent: Henry C. Robertson, pro se

STATEMENT OF THE ISSUES

The issue in this case is whether the Pinellas County Construction Licensing Board should discipline the Respondent for alleged willful or deliberate disregard and violation of applicable building codes.

PRELIMINARY STATEMENT

On August 5, 1994, the Pinellas County Construction Licensing Board filed an Administrative Complaint against the Respondent (Complaint No. C94-496). The Respondent disputed the charges and requested formal administrative proceedings.

On September 13, 1994, the Board referred the matter to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 94-5080, assigned to a hearing officer and set for final hearing in Clearwater, Florida, on December 13, 1994. The hearing date later was changed to December 15, 1994.

At final hearing, the Board called two witnesses and had Petitioner's Exhibits 1 through 6 admitted in evidence. The Respondent testified in his own behalf and also called his wife to testify. The Board chose to preserve the testimony by tape recording.

At the conclusion of the hearing, the parties were given ten days in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order.

FINDINGS OF FACT

1. The Respondent, Henry C. Robertson, is a certified electrical contractor, holding license number C-2720. In June, 1993, the Respondent was the exclusive electrical contractor for a residential subdivision project in Pinellas County that had been underway since 1991. Altogether, it consisted of several hundred residential units. The Respondent pulled the electrical permits for all of the units in the project. There was a single entrance to the subdivision via security gate. At its end, the entrance road (Arabian Lane) formed a "T" with the other road in the subdivision. By June, 1993, most of the subdivision already was built out.

   
   

2. On June 15, 1993, the Respondent called the Board staff for final inspection on one half of a duplex located at 1757 Arabian Lane. When the inspector arrived, electrical work was being done on the other half of the duplex. Neither of the two workers on the job was a master or a journeyman electrician. One declined to answer the inspector's questions and just walked off the jobsite; the other stayed but could not give any information as to the whereabouts of the journeyman. No other workers were in the vicinity, i.e., in either side of the duplex, at adjacent properties, or within sight.

   
   

3. Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code, 1993 Edition, limits the issuance of electrical permits to licensed electrical contractors and provides: "Where any electrical work is being done a master or journeyman electrician shall at all times be present on the job."

   
   

4. According to the Respondent's testimony, there was a journeyman electrician somewhere in the subdivision who could have been contacted by the two workers at 1757 Arabian Lane if they needed help or advice. The Respondent himself also visits all jobsites at least once a day. This testimony was not refuted or contradicted.

   
   

5. The Board's Chief Electrical Inspector, Joseph Bolesina, testified that, in interpreting Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code, his office considers each electrical permit issued to define "the job" to which it applies. In the case of 1757 Arabian Lane, each side of the duplex had its own electrical permit. However, he conceded that, if work was in progress on both sides of the duplex, only one master or journeyman would be required for the two permits involved. Neither the Board nor his office has specified any other circumstances under which a single master or journeyman electrician could "at all times be present" at work being done on more than one permit. He testified that, in his view, it would depend on whether the master or journeyman electrician would be readily accessible and available to check work and to help and give advice as necessary. He testified that, in his view, the presence of a master or journeyman electrician "somewhere in the subdivision," rotating between individual jobsites, would not qualify, even if they could be contacted immediately by radio or cellular phone. In this case, neither of the workers was able to contact the journeyman electrician who was supposed to have been available and accessible to them.

6. The Respondent testified that he believed his work methods on June 15, 1993, met the letter and the spirit of the building codes, especially in light of the difficulty he and other electrical contractors have finding and hiring journeymen. He testified that he thought the "job" consisted of all the work going on at the subdivision project, not each individual unit.

   
   

7. In August, 1992, the Respondent stipulated to a $150 fine to resolve Board Complaint No. C92-330, alleging a violation of Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code by a company he qualified (although he was not involved personally in the violation). In that case, the journeyman left the jobsite to get supplies that were short.

   
   

8. In May, 1993, the Respondent stipulated to another $150 fine to resolve Board Complaint No. C93-8, alleging another violation by the same company. (Again, the Respondent qualified the company but was not involved personally in the violation). In that case, the journeyman electrician was not due to arrive at work for an hour when the workers were found unloading and stretching out cord in preparation for beginning work without him.

   
   

9. In April, 1994, the Board filed Complaint No. C94-96 for another alleged violation, this time by a company the Respondent was operating personally. The Respondent admitted the charges. In that case, the journeyman left the jobsite to get PVC cement.

   
   

10. The prior incidents did not raise the identical issue present in this case. However, the Respondent testified that he has had several occasions to discuss with Board staff the subject of compliance with Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code. While those discussions may not have specified all circumstances under which a single master or journeyman electrician could "at all times be present" at work being done on more than one permit, they should have made it clear to the Respondent that the journeyman electrician at least had to be available and accessible to the workers. In this case, the two workers on the jobsite were unable to tell the inspector where the journeyman was.

    
    

11. The Board has published "Guidelines for Disciplinary Action" which provide for a $300 fine as the "typical" penalty for the first "minor" infraction and, for repeat "minor" infractions: an "additional $500 up to three; then mandatory appearance before the Board." The Guidelines also list aggravating and mitigating circumstances which focus on the harm done by the offense, the licensee's efforts to rectify the situation, and whether there is a history of similar offenses by the licensee. They also authorize suspension or revocation and fines "not to exceed $1,000 per count."

    
    

    CONCLUSIONS OF LAW

    
    

12. Under Section 12(6) of Chapter 75-489, Laws of Florida (1975), as amended, the Pinellas County Construction Licensing Board (the Board) "is designated an 'agency' as defined in section 120.52(1)(c), Florida Statutes, for purposes of utilizing the Division of Administrative Hearings of the Department of Administration." Because of this law, the Division of Administrative Hearings has jurisdiction and is required to hold hearings in cases referred by the Board.

    
    

13. Section 24 of Chapter 75-489, Laws of Florida (1975), as amended, provides in pertinent part:

    1. On its own motion or the verified complaint of any person, the board may investigate the action of any contractor certified or registered

       under this part . . .. Where no local board exists, or when such local board waives its jurisdiction, the board shall take jurisdiction. The Board may take appropriate disciplinary action if the contractor is found to be guilty of or has

       committed any one of the acts or omissions constituting cause for disciplinary action set out herein or adopted as rules or regulations by the board.

    2. The following acts constitute cause for disciplinary action:

       * * *

       (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, this board, or of any municipality or county of this state;

       * * *

       (j) Failing in any material respect to comply with the provisions of this part.

       * * *

       (m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       * * *

       1. The board is authorized to take the following disciplinary action:

          1. Suspend the certificate holder or registrant from all operations as a contractor during the period fixed by the board but the board may permit the certificate holder or registrant to complete any contracts then uncompleted.

          2. Revoke a certificate or registration.

          3. Impose an adminstrative fine or penalty not to exceed $1,000.00 (which shall be recoverable by the board only in an action at law).

          4. Require restitution and impose reasonable investigative and legal costs.

       
       

14. "For the purpose of establishing rules and regulations for the construction, alteration, removal, demolition, equipment, use, occupancy, location and maintenance of buildings and structures," Section 28(3) of Chapter 75-489, Laws of Florida (1975), as amended, adopts the National Electrical Code. Section 29 of Chapter 75-489, Laws of Florida (1975), as amended, gives the Board the power to amend the codes, but referral to the appropriate county-wide board of adjustment and appeals for study and amendment (presumably in addition to the other requirements under Chapter 120, Fla. Stat. (1993), for adoption of rules by "agencies") must precede adoption of any amendments.

    
    

15. As found, Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code, 1993 Edition, limits the issuance of electrical permits to licensed electrical contractors and provides: "Where any electrical work is being done a master or journeyman electrician shall at all times be present on the job." The validity of this amendment has not been challenged under either Section 120.535 or Section 120.56, Fla. Stat. (1993), and it is

    presumed that this amendment has been promulgated under the requirements of both Section 29 of Chapter 75-489, Laws of Florida (1975), as amended, and Section 120.54, Fla. Stat. (1993).

    
    

16. As found, the Respondent was in willful or deliberate violation of Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code on June 15, 1993.

    
    

17. It is noted that Section 32 of Chapter 75-489, Laws of Florida (1975), as amended, creates an Electrical Board of Adjustment and Appeals, among others. In addition, Section 9 of the Pinellas Countywide Amendments to the National Electrical Code makes reference to the possibility of the existence of local boards of adjustment and appeals with concurrent jurisdiction. Section 33 of Chapter 75-489, Laws of Florida (1975), as amended, states that the "respective Boards of Adjustments and Appeals shall have the authority to interpret its respective code adopted for the county." Section 9 of the Pinellas Countywide Amendments to the National Electrical Code states:

    
    

    Any person may file an appeal with the Countywide Board of Adjustment and Appeals for a review of any decision of the building official in reference to any interpretation he may make as to the terms of this Code; provided, however, that if the jurisdiction where the work is located has a local Board of Adjustment and Appeals which hears such appeals, the appeal must first be made to such local board. The decision of such local board

    may be appealed to The Countywide Board of Adjustment and Appeals[.]

    
    

    Although the "adjustment and appeals" process is not clear, it is possible that it could be utilized by the Respondent to obtain clarification on what is required by Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code.

    
    

18. Alternatively, since Chapter 75-489, Laws of Florida (1975), as amended, makes the Board an "agency" under Chapter 120, Fla. Stat. (1993), the Respondent could utilize Section 120.565, Fla. Stat. (1993), to obtain a declaratory statement from the Board as to what is required by Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code.

    
    

19. As found, the Board has published "Guidelines for Disciplinary Action." The validity of the Guidelines has not been challenged under either Section 120.535 or Section 120.56, Fla. Stat. (1993), and it is presumed that this amendment has been promulgated under the requirements of both Section 29 of Chapter 75-489, Laws of Florida (1975), as amended, and Section 120.54, Fla. Stat. (1993). Under the Guidelines, a $500 fine would be the "typical" penalty for the violation in this case. Application of the aggravating and mitigating factors do not make out a compelling case for deviating from the "typical" penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order: (1) finding the Respondent guilty of willfully or deliberately violating

Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code, as charged; and (2) fining him $500.

RECOMMENDED this 13th day of January, 1995, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 13th day of January, 1995.

APPENDIX TO RECOMMENDED ORDER

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-3. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, rejected as not proven. (The Respondent does not contend that he is "exempt" but rather that the entire subdivision should be considered a single "job.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Rejected as not proven that he cannot find any journeyman electricians for residential work. (Proven only that the Respondent has had difficulty finding and hiring them.)

Respondent's Proposed Findings of Fact.

Accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

William J. Owens, Executive Director Pinellas County Construction Licensing Board Suite 102

11701 Belcher Road

Largo, Florida 34643-5116

Henry C. Robertson

Robertson Electrical Services, Inc. 15316 Indian Head Drive

Tampa, Florida 33618

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Pinellas County Construction Licensing Board written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Pinellas County Construction Licensing Board concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-005080

Orders for Case No: 94-005080