STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. )

) THOMAS JOSEPH PYCHE, SR., d/b/a ) SUNDANCE HOME REMODELING, INC., )

)

Respondent. )

Case No. 06-1145

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Carolyn S. Holifield, a designated Administrative Law Judge of the Division of Administrative Hearings, on June 1, 2006, in Tampa, Florida.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Thomas Joseph Pyche, Sr., pro se

Sundance Home Remodeling, Inc. 1401 Pinetree Circle

Wimauma, Florida 33598

STATEMENT OF THE ISSUE

Whether Respondent violated Subsection 489.531(1), Florida Statutes (2003),1 by engaging in the unlicensed practice of

electrical contracting, and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

On November 2, 2005, Petitioner, the Department of Business and Professional Regulation (Department), filed an Administrative Complaint, alleging Respondent, Thomas Joseph Pyche, Sr., d/b/a Sundance Home Remodeling, Inc. (Respondent), violated the laws regulating the practice of unlicensed electrical contracting in the State of Florida. Specifically, the Administrative Complaint charged that Respondent violated Subsection 489.531(1), Florida Statutes, by practicing contracting or advertising himself or a business organization as available to engage in electrical or alarm system contracting without being certified or registered. Respondent disputed the allegations contained in the Administrative Complaint and requested a formal administrative hearing. On or about April 3, 2006, the Department forwarded the matter to the Division of Administrative Hearings.

At hearing, Petitioner presented the testimony of a former Department investigator, Valeria Ervin, and offered and had five exhibits accepted into evidence. Respondent presented the testimony of Phyllis Price and testified on his own behalf.

Respondent did not introduce any exhibits.

The hearing Transcript was filed on June 12, 2006. The Department filed its Proposed Recommended Order on June 21, 2006. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found:

1. At all times material hereto, Respondent was not licensed or had ever been licensed to engage in electrical contracting in the State of Florida.

2. At all times material hereto, Sundance Home Remodeling, Inc., did not possess a certificate of authority to practice as an electrical contractor qualified business.

3. At all times material hereto, Respondent was the sole owner/operator of Sundance Home Remodeling, Inc.

4. Respondent has an occupational carpentry license from Hillsborough County, Florida, and uses the general contractors’ licenses of others.

5. In April 2003, Respondent contracted with Phyllis Price to do the following work at Ms. Price's residence in Riverview, Florida: enclose her back porch, add on a screened room, change the French doors in some of the bedrooms, and install electric ceiling fans, an electric outlet, and an exterior light.

6. On or about April 17, 2003, Respondent contracted with Ms. Price to install and hook up four electric ceiling fans and install one exterior light for $130.00.

7. On or about April 26, 2003, Respondent submitted a proposal to Ms. Price for the installation of one electric outlet at her residence for $25.00.

8. Respondent completed the work that he contracted to do for Ms. Price, including the electrical work.

9. Ms. Price paid Respondent at least $5,240.00 for the work that he performed. Of that amount, Ms. Price paid Respondent a total of $180.00 for the electrical work he performed at her residence.

10. The electrical work contracted and performed by Respondent required a permit.

11. No evidence was presented that, prior to this time, Respondent has been subject to disciplinary action for the unlicensed practice of electrical contracting.

12. The total investigative costs to the Department of Business and Professional Regulation, excluding costs associated with any attorney’s time, was $313.00.

    CONCLUSIONS OF LAW

    
    

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

    proceeding, pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005).

14. The Department is the state agency charged with regulating the practice of unlicensed electrical contracting pursuant to Chapters 455 and 489, Florida Statutes.

15. The Department is empowered to discipline any subject who is found guilty of any of the grounds enumerated in Subsection 489.531 (1), Florida Statutes.

16. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent.

    § 120.57(1)(j), Fla. Stat.; Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Evans Packing Co. v.

    Department of Agriculture and Consumer Services, 550 So. 2d 112,

    
    

    116 (Fla. 1st DCA 1989) provides the following guidance regarding the clear and convincing evidence standard:

    That standard has been described as follows:

    
    

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.

    2d 797, 800 (Fla. 4th DCA 1983).

17. The Administrative Complaint alleges that on three occasions, Respondent violated Subsection 489.531(1), Florida Statutes, which provides, in pertinent part, as follows:

    (b) Use the name or title “electrical contractor” or “alarm system contractor” or words to that effect, or advertise herself or himself or a business organization as available to practice electrical or alarm system contracting, when the person is not then the holder of a valid certification or registration issued pursuant to this part.

    
    

18. Subsection 489.505(12), Florida Statutes, defines an electrical contractor, in pertinent part, as the following:

    1. person who conducts business in the electrical trade field and who has the experience, knowledge, and skill to install, repair, alter, add to, or design, in compliance with law, electrical wiring, fixtures, appliances, apparatus, raceways, conduits, or any part thereof, which generates, transmits, transforms, or utilizes electrical energy in any form, including the electrical installations and systems within plants and substations, all in compliance with applicable plans, specifications, codes, laws, and regulations. The term means any person, firm, or corporation that engages in the business of electrical contracting under an express or implied contract; or that undertakes, offers to undertakes, purports to have the capacity to undertake, or submits a bid to engage in the business of electrical contracting; or that does itself or by or through others engage in the business of electrical contracting.

       
       

19. Pursuant to Subsection 489.505(9), Florida Statutes, the attempted sale of contracting services and the negotiation

    or bid for a contract on these services also constitutes contracting.

20. The Department has proven by clear and convincing evidence that on two occasions, Respondent violated Subsection 489.531(1), Florida Statutes, by practicing electrical contracting without a certification or registration. Even though Respondent did not possess an electrical contracting license or certification, he contracted and subsequently performed electrical work requiring a state license at Ms. Price's residence.

21. Subsection 455.2273(5), Florida Statutes, states that the Administrative Law Judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the board or department and must state in writing the mitigating or aggravating circumstances upon which the recommended penalty is based.

22. Pursuant to Section 455.228, Florida Statutes, the Department may impose an administrative penalty not to exceed

    $5,000 per incident and is entitled to recover the costs of investigation.

23. In this case, where there has been no prior disciplinary action taken against Respondent, an appropriate penalty is $1,000.00 per offense.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered that (1) finds Respondent not guilty of the charges alleged in Count One of the Administrative Complaint; (2) finds Respondent guilty of the charges in Count Two and Count Three of the Administrative Complaint; (3) imposes on Respondent an administrative fine of

$1,000.00 for each violation, for a total administrative fine of

$2,000; and (4) assesses Respondent costs of $313.00, for the investigation and prosecution of this case, excluding costs associated with an attorney's time.

DONE AND ENTERED this 27th day of July, 2006, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2006.

ENDNOTE

1/ All references to Florida Statutes are to the 2003 version, unless otherwise indicated.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Thomas Joseph Pyche, Sr. Sundance Home Remodeling, Inc. 1401 Pinetree Circle

Wimauma, Florida 33598

John Washington, Hearing Officer Office of the General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 06-001145

Orders for Case No: 06-001145