STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-3599PL

)

MARK S. HOLTZ, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 14, 2009, by video teleconference between West Palm Beach and Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: LeChea C. Parson, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2022

For Respondent: Mark S. Holtz, pro se

M. H. Electrical Services, Inc. 11512 41st Court, North

Royal Palm Beach, Florida 32411

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

On February 12, 2009, Petitioner filed an Administrative Complaint against Respondent, which alleged certain facts pertaining to Respondent’s dealings with a consumer named Anthony Malone. Based on those factual allegations, Petitioner charged Respondent in two Counts with the violations that are at issue in this proceeding.

Count I alleged that Respondent’s license should be disciplined pursuant to Section 489.533(2), Florida Statutes,1 because he violated the provisions of Section 489.533(1)(f), Florida Statutes, by providing negligent and incompetent work in the practice of electrical contracting.

Count II alleged that Respondent’s license should be disciplined pursuant to Section 489.533(2), Florida Statutes, because he abandoned the project in violation of Section 489.533(1)(p), Florida Statutes, by failing to perform work on the subject job without just cause for 90 consecutive days.

Respondent timely requested a formal administrative hearing, the matter was duly referred to DOAH, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Thaddeus Clark (an investigator employed by Petitioner) and Mr. Malone. Petitioner offered six sequentially-marked exhibits, each of which was admitted into evidence.2 Respondent testified on his own behalf and presented the additional testimony of William Hedges (an electrician employed by Respondent’s company). Respondent offered one exhibit, which was admitted into evidence.

At the request of the Petitioner, official recognition was taken of the applicable statutory provisions.

A Transcript of the proceeding was filed September 29, 2009. The deadline for the filing of post-hearing submittals was set for ten days following the filing of the transcript. Petitioner timely filed a Proposed Recommended Order (PRO), which has been duly-considered by the undersigned in the preparation of this Recommended Order. Respondent has not filed a PRO as of the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent has been licensed by the Petitioner as an electrical contractor. Respondent holds license EC 0002526. Respondent does business

   as M. H. Electrical Services (M. H. Electrical) at 11512 41st Court North, Royal Palm Beach, Florida.

2. Petitioner is the agency of the State of Florida charged with regulating the practice of construction contracting in the State of Florida pursuant to the provisions of

   Section 20.165, Chapter 455, and Part II of Chapter 489, Florida Statutes.

3. On May 15, 2007, M. H. Electrical, though the Respondent, drafted a proposal for electrical services to be done on a residence being constructed by Mr. Malone. The location of the residence is 1664 88th Road North, Royal Palm Beach Acreage, Florida. The contract price totaled $5,140.00.

4. Work on the project commenced on May 17, 2007.

   
   

5. There were many problems with the work performed by Respondent’s company that were ultimately corrected by

   Mr. Malone.

   
   

6. Respondent’s workmen installed 15 “12 gauge” wires in a 3/4 pipe underground that was inconsistent with the applicable building code.

7. Respondent’s workmen installed a pipe running from one electrical panel to another incorrectly.

8. Respondent’s workmen wired attic fans in a manner that overloaded an electrical panel.

9. Respondent’s workmen installed a ground rod of only three and a half feet. The applicable building code required a ground rod of eight feet.

10. A kick plate is a metal piece that protects electrical wires from being pierced when sheetrock is being installed. Petitioner asserted that Respondent failed to install kick plates. Respondent’s testimony established that kick plates were not necessary due to the depth of the wall studs that were utilized.

11. Respondent’s workmen installed two wires incorrectly in the laundry room of the house. The wires were cut, which caused a fire hazard. Petitioner did not establish that Respondent’s workmen cut the wires.

12. Respondent’s workmen failed to properly ground whirlpool tub wires for two whirlpools by failing to ground the wires to the main pipe as required by the applicable building code.

13. The work did not progress as contemplated by Mr. Malone and by Respondent. As owner of the premises,

    Mr. Malone called for all inspections of the electrical work. These inspections were performed by employees of the Palm Beach County, Florida, Planning, Zoning and Building Department (the County Building Department). The following is the inspection history between May 21 and October 10, 2007:

    1. Temporary Power scheduled for May 21 was cancelled.

    2. Temporary power on May 22 passed.

    3. Rough electric on June 8 failed.

    4. Rough electric on July 9 passed.

    5. Rough electric on October 10 failed.

       
       

14. The progress of the work was impeded for two primary reasons. First, the testimony of the Respondent, which the undersigned finds to be credible, established that on more than one occasion Mr. Malone did not have necessary materials at the building site. Second, Respondent fired the lead electrician on the subject project approximately two weeks into the project.

15. Following communications with an employee of Florida Power and Light (FPL), Mr. Malone determined that portions of the work performed by Respondent’s employees did not meet the applicable building code. The record is not clear whether this communication occurred before or after the passed inspection on July 9.

16. The last date on which one of Respondent’s employees worked on the project was July 23, 2007. Mr. Malone paid M. H. Electrical the full contract price on July 25, 2007.

17. Mr. Malone and Respondent had a conversation about the communication with the FPL employee. Mr. Malone refused to tell Respondent the name of the FPL employee who stated that some of the work did not meet code. The date of this conversation was not established.

18. Mr. Malone testified that when he paid Respondent on July 25, he believed that a list of ten items needed to be repaired. Mr. Malone further testified that he paid Respondent before these items had been repaired because he believed that Respondent would return to make all necessary repairs. The undersigned finds this testimony to be credible. As of July 25, 2007, when payment was made in full, Respondent knew or should have known that there existed on this project a list of repairs to the electrical wiring that needed to be done. After July 25, 2007, Mr. Malone made repeated efforts to contact Respondent.

19. In response to those calls, Respondent sent an employee to the site to discuss Mr. Malone’s concerns. A locked gate prevented that employee’s entry on the building site. The date of that event was not established.

20. On or before October 10, 2007, Mr. Malone requested another inspection from the County Building Department. That inspection failed. A failed inspection means that there were one or more deficiencies that had to be corrected before the job could progress. The inspector posted a Correction Notice, which advised that the following needed to be done before the job would be accepted: a smoke detector in the master bedroom would have to be relocated to a higher part of the ceiling; a conduit would have to be rerun (this is the deficiency described in paragraph 5 of this Recommended Order); and a ground rod would

    have to be replaced (this is the deficiency described in paragraph 8 of this Recommended Order).

21. On October 11, 2007, two of Respondent’s employees went to the building site to make any needed corrections. Mr. Malone refused to let the employees on the property.

22. Respondent did not return any of the funds paid by Mr. Malone.

23. Respondent did not terminate the contract. Mr. Malone made all necessary electrical repairs.

24. On April 2, 2008, the project passed final inspection.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

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

    § 120.57(1), Fla. Stat.; Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989); Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994); and Department

    of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

27. As a licensed electrical contractor, Respondent is subject to the provisions of Chapters 455 and 489, Florida

    Statutes. Petitioner has the authority and the responsibility to regulate Respondent’s activities as an electrical contractor.

28. Count I of the Administrative Complaint charged Respondent with violating the provisions of Section 489.533(1)(f), Florida Statutes, which prohibit an electrical contractor from:

    (f) Committing fraud or deceit, or negligence, incompetency, or misconduct in the practice of electrical or alarm system contracting.

    
    

29. Petitioner established by clear and convincing evidence that portions of the work done on the subject project by Respondent’s employees did not meet code and constituted negligent or incompetent practice of electrical contracting within the meaning of Section 489.533(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint.

30. Count II of the Administrative Complaint charged Respondent with violating the provisions of Section 489.533(1)(p), Florida Statutes, which prohibit an electrical contractor from:

    (p) Abandoning a project which the contractor is engaged in or is under contractual obligation to perform. A project is to be considered abandoned after

    90 days if the contractor terminates the project without just cause or without proper notification to the prospective owner, including the reasons for termination, or fails to perform work without just cause for

    90 consecutive days.

    
    

31. July 23, 2007, was the date Respondent’s employees last worked on the project. October 11, 2007, is the date

    Mr. Malone refused Respondent’s employees access to the project site to make the needed corrections. There are fewer than 90 calendar days between July 24, 2007, and October 11, 2007.

    Mr. Malone refused to divulge to Respondent the name of the FPL employee who told him that the work was defective. Respondent justifiably wanted that name so he could talk directly with the employee to determine the exact nature of the problems.

    Respondent sent employees to the job site to make all necessary repairs prior to the expiration of 90 days, but Mr. Malone refused to permit them access to the premises. Based on the foregoing, the undersigned concludes that Respondent did not abandon the project within the meaning of Section 489.533(1)(p), Florida Statutes, as alleged in Count II of the Administrative Complaint.

32. In its Proposed Recommended Order, Petitioner requests that the undersigned recommend that Respondent be ordered to pay administrative costs in the amount of $740.42. There was no evidence as to the amount of administrative costs incurred by Petitioner for this proceeding. Consequently, no recommendation is made as to administrative costs.

33. The recommended penalty that follows for the Count I violation is authorized by Subsections (c) and (d) of Section 489.533(2), Florida Statutes, and is consistent with the penalty guidelines found at Florida Administrative Code Rule 61G-10.002.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violation alleged in Count I of the Administrative Complaint and not guilty of the violation in Count II. It is further RECOMMENDED that for the Count I violation, the final order issue a reprimand to Respondent and impose an administrative fine against Respondent in the amount of $1,000.00.

DONE AND ENTERED this 20th day of October, 2009, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 20th day of October, 2009.

ENDNOTES

1/ All statutory references are to Florida Statutes (2009). The provisions of Chapter 489 cited herein have not changed since 2007.

2/ Petitioner’s Exhibit 4 is a composite Exhibit consisting of photographs. The Exhibit also contains notations made by

Mr. Malone. Those notations should be ignored because they were not accepted into evidence.

COPIES FURNISHED:

LeChea C. Parson, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2022

Mark S. Holtz

M.H. Electrical Services, Inc. 11512 41st Court, North

Royal Palm Beach, Florida 32411

G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Reginald Dixon, 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: 09-003599

Orders for Case No: 09-003599