Findings Of Fact At all times relevant thereto, respondent, Benjamin R. Newbold, Jr., held registered electrical contractor license number ER 0001170 issued by petitioner, Department of Professional Regulation, Florida Electrical Contractors Licensing Board. He was granted registration in September, 1974 after evidencing competency in Metropolitan Dade County. His present address is Route 3, Box 839, Silver Springs, Florida. He also holds a registered electrical contractor's license with the City of Ocala and, as such, is authorized to pull permits and perform electrical work within that city. At all times relevant thereto, respondent, Edward I. Hammond, held registered electrical contractor license number ER 0003860 issued by petitioner. Hammond was granted registration in September, 1975 after evidencing competency in Marion County, Florida. However, Hammond is not qualified to perform electrical work within the City of Ocala since he had not obtained the required certificate of competency. His present address is 2529 Northeast 6th Street, Ocala, Florida. Section 2.63 of the Ocala City Code provides in part that "no person shall engage in said businesses or occupations (of a contractor) in the city until such person shall have first stood a satisfactory examination before the examining board as to his qualifications and fitness to engage in such occupation or business." On or about March 22, 1983, Drake Contracting Company, a construction firm in Oca1a, Florida, entered into a contract with H & H Electrical Contractor Company (H & H), an electrical firm in Silver Springs, Florida, wherein H & H would perform the electrical work on a construction project for Caviness Buick, 2060 Southwest College Road, Ocala, Florida. The agreed-upon price was $42,113. Hammond was the owner of H & H. In order to perform the work required in the above contract, it was necessary that the person doing the work be certified by the City of Ocala. On April 7, 1983, Newbold filed an application for an electrical permit with the City of Ocala to perform the work on the Caviness Buick project. The application did not reflect that H & H was associated in any respect with the job. Thereafter, on April 13, the City code enforcement officer learned through a telephonic complaint that H & H had no certificate of competency. On April 19, the officer contacted Hammond on the job site to advise him that H & H was in violation of the City code and that he could not perform the job. After being told their endeavors were illegal, respondents entered into a written "joint venture" on April 21, 1983, and agreed to work jointly on the Caviness Buick project and split the profits, if any. Newbold was to be in charge of supervising the employees on the job. Newbold had qualified for a certificate of competency with the City in 1978. Using that certificate, he filed an application for contractor's certificate with the City on May 4, 1983 seeking to qualify H & H. This application was apparently granted by the City shortly thereafter. From that point on, H & H was qualified to contract electrical work within the City. Respondents contended that an informal agreement between the two existed prior to obtaining the contract to do the job and that it was formalized in writing after the City made its complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent Newbold be found guilty of violating Subsections 489.533(1)(k), Florida Statutes, and that a $100 fine be imposed for such conduct, the fine to be paid within thirty (30) days from date of final order in this cause. It is further RECOMMENDED that respondent Hammond be found guilty of violating Subsection 489.513(4), Florida Statutes, and that a $200 fine be imposed for such conduct, the fine to be paid within thirty (30) days from date of final order in this cause. DONE and ORDERED this 8th day of November, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1983. COPIES FURNISHED: Charles Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. Benjamin R. Newbold, Jr. Route 3, Box 830 Silver Springs, Florida 32688 Mr. Edward I. Hammond 2529 Northeast 6th Street Ocala, Florida 32670 Mr. Alan R. Smith Executive Director Florida Electrical Contractors Licensing Board 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact 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. 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. 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. Work on the project commenced on May 17, 2007. There were many problems with the work performed by Respondent’s company that were ultimately corrected by Mr. Malone. Respondent’s workmen installed 15 “12 gauge” wires in a 3/4 pipe underground that was inconsistent with the applicable building code. Respondent’s workmen installed a pipe running from one electrical panel to another incorrectly. Respondent’s workmen wired attic fans in a manner that overloaded an electrical panel. 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. 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. 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. 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. 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: Temporary Power scheduled for May 21 was cancelled. Temporary power on May 22 passed. Rough electric on June 8 failed. Rough electric on July 9 passed. Rough electric on October 10 failed. 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. 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. 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. 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. 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. 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. 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). 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. Respondent did not return any of the funds paid by Mr. Malone. Respondent did not terminate the contract. Mr. Malone made all necessary electrical repairs. On April 2, 2008, the project passed final inspection.
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.
Findings Of Fact There is no dispute as to the facts involved in this rule challenge. Johnson Controls, Inc. is a large corporation operating throughout the United States. It engages in the business of manufacturing electrical components and in constructing, installing and servicing electrical control systems and other phases of electrical contracting work. As its name implies, Johnson Controls' primary emphasis in the electrical field is in selling, installing, and maintaining systems for fire, security, heating, air conditioning, and energy consumption controls. Johnson Controls is presently licensed to do electrical contracting work by 23 counties and municipalities in Florida and in 49 of the 50 states. Winfred Allen Infinger holds a B. E. degree in Technology and Construction, a journeyman electrician's license in Pinellas County, and is fully qualified by training and experience to be the qualifying agent of Johnson Controls in this application. In its letter of May 8, 1979 denying petitioner's application, Respondent, through its executive director, stated the following grounds: Your application failed to meet the qualification as that of a Florida licensed electrical contractor (468.181(5)) whose services are unlimited in the Electrical Field. The review of your application reflects that Johnson Controls, Inc., is a specialty contractor and presently Florida Statutes, Chapter 468, Part VII does not provide for licensure of specialty contractors.
Findings Of Fact A.P. Jerguson III is the sole shareholder of Jerguson Electric, Inc., applicant herein, and is the qualifying agent for the applicant. He has been a master electrician in Dade County since 1972 and formed his own electrical company in October, 1972. Prior to obtaining his master's license he was employed by L & M Electric Company and Lund Electric Company. While working for the latter contractor he was electrical foreman on the construction of a Holiday Inn at 79th Street Causeway in Miami. Since forming his own business Jerguson has performed all types of electrical work from equipment installation to electrical wiring. After forming Jerguson Electric he made little or no money the first two years. During the past two years the company made approximately $4,000 net profit each year after paying to the sole shareholder some $18,000 annual salary. In 1975 the applicant did approximately $66,000 in gross sales. The credit information submitted on both Jerguson and the applicant contains no adverse comments and shows both Jerguson and Jerguson Electric to pay bills promptly, have no judgments against them and to be currently solvent. Representative jobs performed by applicant are contained in Exhibit 1. These show routine wiring jobs, commercial and residential electrical work, and freezer and air-conditioning installations. These jobs varied between $500 and $8,000 in price and totaled some $60,000 over a three year period. However, as seen from the financial statement for 1975, where the total work performed amounted to some $66,000 these were representative jobs over the three year period and not all jobs performed during this three year period as the form on which they were submitted seems to indicate. At the hearing Respondent stipulated that the qualifying agents' qualifications were not in question and that the agent was denied the right to take the examination because the applicant did not show enough major jobs to demonstrate its qualification and business experience in handling large jobs. The Executive Director of the Board further testified that upon this basis the Board would deny certification of any new business organization, regardless of the expertise of its qualifying agent or agents and the financial status of the organization, simply because the new business could not show a sufficient number of jobs completed. Apparently if the qualifying agent had previously been certified by the board a new business could be certified pursuant to the provisions of Rule 21GG-2.01(2) F.A.C.
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.
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: At all times material hereto, Respondent was not licensed or had ever been licensed to engage in electrical contracting in the State of Florida. At all times material hereto, Sundance Home Remodeling, Inc., did not possess a certificate of authority to practice as an electrical contractor qualified business. At all times material hereto, Respondent was the sole owner/operator of Sundance Home Remodeling, Inc. Respondent has an occupational carpentry license from Hillsborough County, Florida, and uses the general contractors’ licenses of others. 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. 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. 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. Respondent completed the work that he contracted to do for Ms. Price, including the electrical work. 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. The electrical work contracted and performed by Respondent required a permit. No evidence was presented that, prior to this time, Respondent has been subject to disciplinary action for the unlicensed practice of electrical contracting. The total investigative costs to the Department of Business and Professional Regulation, excluding costs associated with any attorney’s time, was $313.00.
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.
The Issue The parties stipulated that the Petitioner's financial responsibility and morals were not an issue. The only basis for the Board's denial was the Petitioner's alleged lack of experience. Petitioner and Respondent submitted proposed findings of fact which were read and considered. These proposals are discussed in detail in the Conclusions of Law.
Findings Of Fact Petitioner is presently employed as an electrical inspector for Hillsborough County, Florida. He has held this position for approximately two and one-half (2 1/2) years. He holds a master's electrician's license issued by Hillsborough County but is prohibited by terms of his employment as an electrical inspector from engaging in any electrical contracting activity. Petitioner is technically experienced as an electrician. Prior to his employment as an electrical inspector, Petitioner was employed by Mobil Chemical Company which operates several phosphate mines in central Florida. The Petitioner was employed at its Fort Meade mine. The Fort Meade mine, or plant, is a substantial operation producing approximately four (4) million tons of phosphate per year at the time when Petitioner was employed. The mining area occupies several hundred acres and the working or processing area occupies approximately ten (10) of those acres. The working area comprises of a flotation plant, a washer plant, a sizing section, a shipping area where the rock is loaded on railroad cars, a maintenance area, and an office complex. The plant ran three (3) shifts around the clock and employed approximately one hundred (100) persons. All of the major equipment to include the 30 and 40 yard draglines at the Fort Meade plant alone contained in excess of one hundred (100) electric motors each with its own fuse box and disconnect. The Petitioner was employed by Nobil Chemical Company for twenty (20) years (1962-1982); 16 years as an electrician and four years as supervisor of the electrical maintenance at the Fort Meade plant. He was responsible for all electrical repairs, maintenance, and new construction at the plant for all three shifts. His direct superior was the department chief who was in charge of all the electrical departments at all of Mobil's phosphate mining locations. Approximately twenty (20 percent) percent of the Petitioner's time was spent on new construction projects. Approximately forty (40 percent) percent of petitioner's time was spent on regular maintenance and repairs. Fifteen (15 percent) percent of the Petitioner's time was spent on emergency repairs. The remainder of petitioner's time was spent on miscellaneous projects. Petitioner supervised a staff of ten (10) men: two (2) crewmen, four linemen, and four (4) electricians. The Petitioner was responsible for estimating the cost of jobs for his immediate superior to include the cost of materials and the number of man hours. The Petitioner was responsible for counting and reporting the number of hours his employees worked in turning this information into the company's payroll section. Petitioner had the power to request overtime work for his employees and made recommendations concerning hiring and firing personnel. On new construction the Petitioner's responsibilities began with doing takeoffs from blueprints provided for the job and supervising the work through to its completion. He was responsible for the maintenance and repair of the Fort Meade facility to include small electrical motors, large electrical motors, office lighting, transformers, and the large draglines. Petitioner's experience included experience with three (3) phase electrical power, high voltage electrical service, and lower voltages used in small motors, lights and appliances. The electrical department which the Petitioner headed provided service only to Mobil's Fort Meade plant. Mobil is not an electrical contractor; however, its electrical department provided extensive services which are comparable to those an outside electrical contracting service would have provided. Although the petitioner did not prepare a payroll for those persons who he supervised, he did serve as the clerk for his church for five (5) years during which time he was responsible for preparing the payroll for the church's employees. The petitioner applied in 1982 to sit for the electrical contractor's licensing examination. His application was approved by the Respondent and the Petitioner sat for the examination on two occasions, failing both examinations. Petitioner reapplied to sit for the electrical contractor's licensing examination in 1984 and was denied by the Respondent based upon lack of satisfactory experience. The Petitioner held a responsible management position with Mobil at the Fort Meade plant as supervisor of electrical maintenance at the Fort Meade facility for four (4) years. The Petitioner never negotiated a construction contract, was never bonded as a contractor, never obtained insurance to cover his operation as a contractor, and never sought a building permit for any of the electrical work done at the Fort Meade facility.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Electrical Contractors Licensing Board disapprove the application of Cecil U. Lane to sit for the statewide electrical contractor's license. DONE and ORDERED this 18th day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1985. COPIES FURNISHED: Mr. Jerry W. Hendry Executive Director Department of Professional Regulation Division of Electrical Contractors 130 North Monroe Street Tallahassee, Florida 32301 Eric S. Ruff, Esquire Post Office Box TT Plant City, Florida 33566 Arthur C. Wallberg, Esquire Department of Legal Affairs Suite 1601 The Capitol Tallahassee, Florida 32301 Mr. Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant findings of fact: By its Administrative Complaint filed herein dated July 6, 1982, the Petitioner, Electrical Contractors Licensing Board, seeks to take disciplinary action against the Respondent, J. Hugh Smith, a registered electrical contractor, who holds license number ER 0004272. The Respondent is the President of Electric Hugh Company, Inc. Electric Hugh Company is the entity through which the Respondent engaged in the business of electrical contracting in the City of Jacksonville. On March 3, 1982, the Construction Trades Qualifying Board for the City of Jacksonville met and considered charges filed against the Respondent for failure to use certified craftsmen. A Mr. Etheridge, an employee of Respondent, was permitted to engage in electrical contracting work unsupervised by a certified craftsman without being licensed as a certified craftsman. By so doing, Respondent violated Section 950.110(a), Ordinance Code of the City of Jacksonville, Florida. 1/ For that code violation, Respondent's certificate was suspended for a period of six (6) months. (Petitioner's Exhibit 1 and testimony of John R. Bond, Executive Director -- Construction Trades Qualifying Board for the City of Jacksonville) On June 2, 1982, the Construction Trades Qualifying Board convened another meeting to consider other charges filed against Respondent based on an alleged failure (by Respondent) to pull electrical permits on four instances wherein a permit was required. At that time, Respondent's certification was revoked effective June 2, 1982, and that revocation remains in effect. The action by the Construction Trades Qualifying Board, City of Jacksonville, has been reviewed by Petitioner. By way of mitigation, Respondent opined that he considered the two years in which his license has been revoked by the City of Jacksonville as sufficient penalty for the violation. Respondent did not substantively contest the charges.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's registered electrical contractor's license number ER 0004272 be suspended for a period of two years. DONE AND ENTERED this 17th day of April 1984 in Tallahassee, Florida. 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 17th day of April 1984.
Findings Of Fact The Petitioner is General Manager and President of Modern Air Conditioning, Inc., (hereafter "Modern Air" or "Corporation"), and R. L. Anderson, Inc., Mechanical Contractors. He has held these positions with Modern Air since April 1965. The Petitioner has held journeyman's cards in air conditioning, as well as union structural iron worker's, competency and electrical journeyman szzz cards. The Petitioner has been a member of several municipal and county licensing boards and is presently serving a third term on the Florida Construction Industry Licensing Board. Modern Air is or has been licensed as an electrical contractor in Lee, Charlotte, Glades, Collier, Hendry, and Sarasota counties and the cities of Sanibel, Naples, and Punta Gorda. Modern Air employs six full-time and three part-time journeymen electricians. Among the representative electrical contracting jobs which the Corporation has performed over the past three years are wiring schools, homes, condominiums, and small commercial businesses. In addition to air conditioning and rewiring, the Corporation employs individuals to perform plumbing and insulating work. Modern Air is a solvent corporation with assets in excess of one and a half million dollars. Its net income for 1978 was $118,967.00. Corporate retained earnings for March 31, 1977 through 1978 were $463,936.00. The Corporation is bonded with the American Insurance Company for one million dollars per single occurrence with a three million dollar maximum limit. Modern Air and Petitioner have high credit ratings and enjoy excellent reputations in the community. On December 18, 1978, Petitioner submitted an application to the Florida Electrical Contractor's Licensing Board to sit for the state electrical contractors examination in his capacity as qualifying agent for Modern Air. By letter dated March 15, 1979, the Board, upon the advice of its application committee and through its executive director, denied Petitioner's application. The denial was due to Petitioner's failure to demonstrate "unlimited" experience in the field of electrical contracting. At the hearing Petitioner explained the experience portion of his application and particularly the method which he used to demonstrate the value of each particular job listed. For example, as to one job, Collier County Public Schools, the value listed on the application was $33,000 yet the actual value of the total job to Modern Air was in excess of a quarter of a million dollars. The $33,000 was solely electrical with the rest being subcontracted while Modern Air remained prime contractor. The job information furnished which included auditoriums, cafeterias, gymnasiums, industrial arts labs, and homes was noted on the application as being indicative or representative of the corporate activity over the preceding three years. During the hearing, the Board's expert witness stated that if he had served on the application committee he would have returned the application and requested additional information in order to determine qualifications rather than simply deny the application.
Findings Of Fact Petitioner Cobo Company, Inc., is a mechanical contractor located in Miami, Florida, whose qualifying agent, Jose Cobo, is certified in that capacity pursuant to Chapter 489, Florida Statutes. By letter of August 18, 1980, Respondent Department of General Services confirmed Petitioner's annual prequalification as a potential bidder for building construction contracts pursuant to Section 255.29, Florida Statutes, for the "type or class as defined in your license." (Testimony of Cobo, Exhibit 1) At an undisclosed date, Respondent published an advertisement for bids for Project No. DGS-7969-C, "Major Repairs-Chiller Replacement, Graham Building, Miami, Florida." The advertisement required all bidders to submit prequalification data of their eligibility to submit proposals if not previously qualified for the current fiscal year. The advertisement and invitation for bids stated that bids must be submitted in full in accordance with the requirements of the drawings, specifications, bidding conditions, and contractual conditions, and that sealed bids would be opened on September 30, 1980. Section B-2 of the specifications required that the bidder present evidence that he was "authorized to perform the work required in these documents in accordance with the applicable provisions of Florida Statutes governing contractors." (Exhibit 4) Respondent's Instructions to Bidders further required that bidders submit evidence of ability to provide necessary performance and labor and material payment bonds, and that bids should be accompanied by a bid guarantee of not less than 5 percent of the amount of the bid. The instructions also required bidders to submit a list of previous contracts involving similar work which had been satisfactorily completed, and to list those qualified subcontractors which the bidder intended to be employed on the contract. They further required a bidder to indicate bid prices on the proposal form for the entire work and for any alternates on which he bids. The instructions stated that if the base bid was within the amount of funds available to finance the contract and the owner (Respondent) wished to accept alternate additive bids, contract award would be made to that responsible bidder submitting the low combined bid, consisting of the base bid plus alternate additive bids. Section B-24 of the contract document reads in part as follows: B-24 CONTRACT AWARD The Contract will be awarded by the Executive Direction, Department of General Services, as soon as possible, to the lowest qualified bidder provided his bid is reasonable and it is in the best interest of the Owner to accept it. The Owner reserves the right to waive any informality on bids received when such waiver is in the interest of the Owner. The Agreement will only be entered into with reasonable contractors, found to be satisfactory by the Owner, qualified by experience and in a financial position to do the work specified. Section 01010 of the specifications provides in part as follows: SECTION 01010 - SUMMARY OF WORK 1. GENERAL DESCRIPTION. The project in general consists of the construction of the contract entitled Major Repairs-Chiller Replacement, Graham building, Miami, Florida, State Project NO. DGS-7069-C. A general description of the project and its scope include the following: Replacement of chiller for central air conditioning system. Install new cooling towers and pump. The contract drawings and specifications provided for the removal of a portion of an interior wall, and removal of an exterior wall window and masonry work below the window to provide access for removal of the existing chiller and its replacement with new equipment. In addition, the contract included electrical work incident to the installation of the chiller, removal of an existing hand rail for clear access to the equipment and later replacement, installation of pitch pans for pipes and other openings on the roof, and the erection and installation of structural steel cooling towers. The specifications call for painting, plaster work, replacement of flooring and ceiling, and installation of a window wall panel, as required in restoring the demolished area. They further called for a replacement demountable interior wall partition to provide future access to the air conditioning equipment, as an alternate portion of the project. Section 01021 of the specifications described the bid items as a Base bid, Additive Alternate No. 1 for using higher efficiency chiller, and Additive Alternate No. 2 for installation of the demountable partition. However, the specifications had been altered prior to the issuance of the bid invitation to provide for the higher efficiency chiller as part of the base bid, but Section 01021 had not been changed accordingly. Respondent's proposal form for use by bidders, however, had provisions for entry of only a Base bid and Alternate No. 1 for the installation of the demountable partition. (Testimony of Karagianis, Exhibits 4-6) Petitioner submitted its bid for the project on September 30, 1980. Its base bid was $225,440. It also bid on the alternate for installation of demountable partitions in the sum of $1,170, and added to the bid form an alternate for the use of higher efficiency chiller in the amount of $1,150. Seven other bids were submitted on the proposal ranging from $239,300 by Sam L. Hamilton, Inc., to a high bid of $430,624. Hamilton's additive bid for the alternate partitions was in the amount of $1,950. Petitioner enclosed with its proposal the required contractor's qualification statement showing previous experience as a mechanical contractor, bid bond, and other required information. It listed L. Milton Construction, Inc., as a general construction subcontractor and Sparta Insulation as an insulation contractor. Although Petitioner intended that Lloyd N. Jones perform the electrical work on the project, he was not listed as a subcontractor because Petitioner did not know at that time whether he would be a subcontractor of Milton or of his own firm. Petitioner included the alternate bid for the higher efficiency chiller because it was required under Section 01021 of the specifications. Milton's bid to Petitioner for the construction work on the contract was in the sum of $7,000. (Testimony of Cobo, Exhibits 2-3) By letter of October 7, 1980, Respondent informed Petitioner that it intended to contract with Sam L. Hamilton, Inc., which had been determined the qualified low bidder meeting the requirements of the specifications. The letter advised the Petitioner that is bid was rejected because it was not a certified or registered general or building contractor as required by Section 489.105, Florida Statutes. Attached to the letter was a copy of a letter of William J. Roberts, attorney for the Florida Construction Industry Licensing Board, to Respondent, dated October 18, 1977, setting forth a legal opinion that a mechanical contractor could not be the prime contractor on a state contract in which the bulk of the work is mechanical in nature, but the remaining portion is to be subcontracted to a general contractor. Roberts testified at the hearing that he had drafted legislation which changed the definition of "contractor" previously found in subsection 478.102(1), and in his view, under such definition, a mechanical contractor would not be authorized to become a prime contractor is it were necessary for him to subcontract any non-mechanical work called for under the contract provisions which he was not qualified to perform. (Testimony of Roberts, Exhibit 7) Respondent's project director estimates that the chiller replacement project was approximately 90 to 93 percent mechanical in nature, and 7 to 10 percent requiring general construction and electrical work. It was his understanding of departmental policy that if any portion of a contract involved general construction work, only a general contractor would be eligible to receive the award and that, in this case, Petitioner could not therefore be accepted as a prime contractor. Respondent's Chief of the Bureau of Construction has instructed Bureau personnel not to award contracts to mechanical contractors which involve non-mechanical work unless the contractor is certified in the non-mechanical area for which the work is required. Several contracts awarded by Respondent to mechanical contractors in 1980 which involved non-mechanical work were "incorrect" awards, in the view of the Chief of the Bureau of Construction. (Testimony of Karagianis, Scaringe, Composite Exhibit 8) General contractors and mechanical contractors are required to be licensed under Chapter 489, Florida Statutes. Any person who desires to be certified statewide in a particular contracting area must establish his competency and qualifications by a combination of education and experience, plus the successful completion of an appropriate examination. The general contractor's examination and mechanical contractor's examination have similar portions relating to applicable federal and state laws and regulations in the contracting field. The remaining and major portion of the mechanical contractor's examination deals with subjects of that specialty such as air conditioning, refrigeration, heating, and the like. The general contractor's examination primarily covers matters relative to construction, such as site work, excavation, structural steel, masonry walls, piles, columns, and form work. (Testimony of Allen, Composite Exhibits 9-10) In the opinion of an expert in the field of architecture, there are no parts of the chiller replacement project which require the services of a general contractor. The demolition of the interior partition and the window wall properly may be accomplished by a mechanical contractor and installation of demountable partitions in lieu thereof can be obtained from speciality suppliers. Other aspects of the project, such as concrete pads, installation of cooling tower, pitch pans, and painting similarly are all considered to be incidental work to a project that is basically mechanical in nature. Certain large mechanical contractors customarily employ qualified individuals to perform specialty tasks such as painting and demolition work, but smaller contractors accomplish such portions of a job by subcontract. (Testimony of Coxen) A recent contract award was made by Dade County to a mechanical contractor for a project similar to the one here in controversy. In that case, the mechanical contractor had listed a general contractor as a subcontractor for the project. (Exhibit 11)
Findings Of Fact 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. 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. 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. 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. 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. 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). 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. On January 27, 1992 Fife travelled to Tampa and took the exam. Results of this exam have not been provided to Petitioner. 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. 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. 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. 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.
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. Rejected. 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
