The Issue The issues to be resolved in this proceeding concern whether the Respondent should be subjected to disciplinary sanctions based upon alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes, by engaging in the business or capacity of a general contractor, and as an electrical or alarm system contractor, without being certified or registered.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating and enforcing the statutes and rules pertaining to the licensure and practice of contracting, including construction contracting and electrical contracting. The Petitioner is also charged with regulating and enforcing statutes concerning the unauthorized practice of such contracting, including practicing without proper certification or registration. At all times material hereto the Respondent, Kevin Davidson, d/b/a Wise and Davidson Construction and Davidson Contracting and Construction (Davidson or Kevin Davidson) was not licensed, certified or registered to engage in construction contracting or any electrical or alarm system contracting in the State of Florida. On or about December 21, 2004, the Respondent, doing business as Davidson Contracting and Construction, contracted with Mr. Hanson, a witness for the Petitioner, to install and erect a 50-foot by 60-foot by 17 and one-half foot airplane hanger on a concrete foundation. He also contracted to install a 200 amp electrical panel box on Mr. Hanson's property in conjunction with construction of the building. The property was located in Morriston, Florida. The contracted price for the work described was $47,597.30. Mr. Hanson paid the Respondent the total of $20,514.30 as part of the contract price. The Respondent never finished the project, but only laid the concrete foundation. At the insistence of the Respondent, Mr. Hanson rented a backhoe which the Respondent agreed to operate in constructing a driveway. The work was never finished, and Mr. Hanson had to obtain other help in constructing the driveway. The Respondent also damaged the rented backhoe while he was operating it. These factors caused Mr. Hanson an additional economic loss of $4,830.38. On or about December 13, 2004, the Respondent, doing business as Wise and Davidson Construction, contracted with Ms. Crowell, a Petitioner witness, to install and erect a 50- foot by 60-foot by 17 and one-half foot steel building on a concrete foundation, also in Morriston, Florida. The Respondent also contracted to install a 200 amp electrical panel box in conjunction of construction of that building. The total amount of the contract price was $47,047.30. Ms. Crowell paid the Respondent at least $35,251.35 in partial payment for the contract. After laying the foundation, however, the Respondent abandoned this project as well. The Respondent's abandonment of the project cost Ms. Crowell $29,943.00 in additional economic damage in order to obtain completion of the project by another contractor. The Department incurred certain investigative costs in prosecuting these two cases. It was thus proven by the Petitioner that the Department expended $510.06 for the prosecution of DOAH Case No. 06-2308. The Petitioner also established that it spent the sum of $944.13 in costs for Case No. 06-2307. This represents total investigative costs expended by the Agency of $1,454.19, for which the Petitioner seeks recovery. The Petitioner is not contending that any attorney's fees are due.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Department of Business and Professional Regulation enter a final order determining that the Respondent has violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the earlier-filed Administrative Compliant in Case No. 06-2308, and impose an administrative fine in the amount of $5,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and an administrative penalty of $5,000.00 with regard to the electrical contracting violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that the final order determine that the Respondent is guilty of violating Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the later-filed Administrative Complaint in Case No. 06-2307 and that an administrative fine in the amount of $10,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and that an administrative penalty of $5,000.00 be imposed for the electrical contraction violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that costs be assessed against the Respondent for investigation and prosecution of both cases, not including costs associated with attorney's time and efforts, in the total amount of $1,454.19, payable to the Petitioner Agency. DONE AND ENTERED this 15th day of November, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 15th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kevin Davidson Post Office Box 131 LoveJoy, Georgia 30250 Nancy S. Terrel Hearing Officer Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue to be determined is whether Respondent has committed the acts alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact At all times material to the Amended Administrative Complaint, Respondent was a certified general contractor, holding license numbers CGC 1505096 (d/b/a Redland Company, Inc.), and CGC 1507772 (d/b/a Welling Construction, Inc.). Respondent was also licensed as a certified utility and excavation contractor, holding license numbers 1223883 (d/b/a Redland Company, Inc.), CUC 1224007 (d/b/a Welling Construction, Inc.). At all times material to the Amended Administrative Complaint, Respondent was a primary qualifying agent for Redland Company, Inc., which held a certificate of authority license number QB 0009978. Respondent was also a primary qualifying agent for Welling Construction Company, which held certificate of authority license number QB 34340. On or around June 21, 2007, Respondent executed a plea agreement in Case No. 07-20415-CR-MARTINEZ, in the United States District Court for the Southern District of Florida. In the plea agreement, Respondent pled guilty to an Information which charged him with one count of mail fraud in violation of 18 U.S.C. § 1341. On that same day, the plea agreement was considered and accepted by the Honorable Jose Martinez. Before acceptance of the plea agreement, the following colloquy occurred: COURT: Mr. Nowell, before you signed this document, did you have the opportunity to discuss it with your lawyer? I did. Q. Did you, in fact discuss it with your lawyer? A. I did. Q. Did you review it with him and do you feel that you fully understood it at the time you executed it? A. Yes, sir. THE COURT: Counsel, do you believe your client fully understood this document before he executed it? MR. ZIMMERMAN: Yes, Your Honor. * * * BY THE COURT: But let me ask you, Mr. Nowell: Is there anything other than what is contained in this eight pages that has been promised to you or made known to you? Do you have any additional promises or assurances of any kind in an effort to induce you to enter into a plea of guilty other than what is contained in those eight pages? A. No, sir. Q. Has anyone attempted in any way to force you to plead guilty, threatened or coerced you? A. No, sir. Q. Do you understand that if I don't accept the sentence recommendation in your plea agreement, you will still be bound by your plea and have no right to withdraw it? A. Yes, sir. Q. Do you understand that if the sentence is more severe than you expected it, you will still be bound by your plea and have no right to withdraw it? A. Yes, sir. Q. How do you now plead to the information pending against you? A. Guilty. THE COURT: It is the finding of the Court in the case of U.S.A. vs. Frederick Bradley Nowell, Sr. that the defendant is fully competent and capable of entering an informed plea, that his plea of guilty is a knowing and voluntary plea supported by an independent basis in fact, containing each of the essential elements of the offense. His plea is therefore accepted. He is now adjudged guilty of that offense. Attached to the plea agreement signed by Respondent was an Agreed Statement of Facts. Those facts supporting the plea provide in pertinent part: The Redland Company, Inc., (hereinafter referred to as "Redland Company"), a Florida corporation, was an engineering construction company [in] Homestead, Florida. The Redland Company provided a broad range of services in the South Florida area, including road, bridge and sewage work, and excavation. Defendant Frederick Bradley Nowell, Sr. was hired by the Redland Company . . . with various duties including the preparation of work estimates, the negotiation of contracts and subcontracts, and the approval of invoices and payments. . . . The Redland Company maintained its operating account at Community Bank of Florida, in Homestead, Florida. [Nowell] had signatory authority over the Redland Company operating account. In or around October 1992, [Nowell] established Nowell Group, Inc., a Florida corporation of which he was president. * * * 6. In or around November 1997 through in or around October 2006, . . . [Nowell] did knowingly and with intent to defraud devise and intend to devise a scheme and artifice to defraud and to obtain money and property from the Redland Company by means of materially false and fraudulent pretenses, representations, and promises, knowing that they were false and fraudulent when made, and knowingly caused to be delivered certain mail matter by United States Mail and by a private and commercial interstate carrier, for the purpose of executing the scheme. * * * [Nowell], having control of the payment of vendor invoices at the Redland Company and signatory authority over the company's operating bank account, issued and signed numerous unauthorized Redland Company checks payable to NGI Marine. In one instance, Nowell made the unauthorized Redland Company check payable to Welling Construction, a construction company owned by his wife. [Nowell] would deposit the unauthorized Redland Company checks made payable to "NGI Marine" and "Welling Construction" into his Nowell Group, Inc. bank account. Through this scheme, Nowell was able to defraud the Redland Company of approximately $11,441,100 dollars, which monies Nowell used for travel, gambling, and his general personal benefit. [Nowell] concealed the issuance of the unauthorized checks by writing "NGI Marine" or "Welling Construction" only on the negotiable copy of the check, while falsifying the corresponding duplicates of the check to make it appear that the original check had been made payable to an established Redland Company vendor. Nowell would then [sic] attach old, legitimate vendor's invoices to the false duplicates as purported support for the checks, and place and cause to be placed the fraudulent documents in company files. To further conceal the fraud, [Nowell] would review the monthly Community Bank of Florida bank account statements for the Redland Company and remove evidence of his wrongdoing. Where the bank statements reflected checks issued to NGI Marine, Nowell would alter the documents to make it falsely appear that the checks had been issued to legitimate vendors. On or about January 16, 2003, [Nowell], for the purpose of executing and in furtherance of the aforesaid scheme and artifice to defraud and to obtain money and property from others by means of materially and false and fraudulent pretenses, representations, and promises, and attempting to do so, did knowingly cause to be delivered by United States Mail or a commercial interstate carrier, a 2003 Uniform Business Report on behalf of Nowell Group, Inc., sent from the Southern District of Florida to the Florida Secretary of State in Tallahassee, Florida. The transfer of funds and the receipt and issuance of checks arec essential to the practice of contracting. Financial responsibility is inextricably intertwined in the practice of contracting. In this case, the acts to which Respondent stipulated involved defrauding the company for which Respondent was a primary qualifying agent. Respondent was adjudicated guilty of a crime directly related to the practice of or the ability to practice contracting. Respondent has challenged the propriety of his guilty plea in the federal courts. To date, his challenges have been unsuccessful. The total investigative costs of this case incurred by the Department, excluding costs associated with any attorney's time, was $223.21.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered: Finding that Respondent violated Section 489.129(1)(c), Florida Statutes, as charged in Count I of the Amended Administrative Complaint; Finding that Respondent violated Section 489.129(1)(c), by violation of Section 455.227(1)(c), Florida Statutes, as charged in Count II of the Amended Administrative Complaint; Revoking Respondent's certifications and certificates of authority, and imposing a fine of $10,000 for the violation of Count I of the Amended Administrative Complaint; imposing an additional fine of $5,000 for Count II of the Amended Administrative Complaint; and imposing costs in the amount of $223.21. DONE AND ENTERED this 27th day of January 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 January, 2009.
Findings Of Fact Petitioner, Sharon Adkins, filed application with Respondent for registration as an electronic repair dealer, together with the forty-five dollar registration fee, in August, 1978. A second application was filed in September, 1978 which reflected that Petitioner had commenced business under the name "A Consumer Tip" at Ft. Lauderdale, Florida on August 23, 1978. By letter of October 24, 1978, Petitioner was advised by Respondent that her application was denied. The stated reason for denial was that the name "A Consumer Tip" was already known as a title for public service advertising in the yellow pages of the telephone directory in her community, and that therefore, registration could not be validated for a name which was misleading within the meaning of Rule 7B- 2.08 Florida Administrative Code, and within the meaning of Section 468.151, Florida Statutes. Petitioner thereafter requested an administrative hearing on the denial of her registration (testimony of Petitioner, Exhibits 2-4). The advertising pages of the Southern Bell Telephone Company's telephone directory for Fort Lauderdale for the years 1978-79 and 1979-80 reflect a listing of Petitioner's business name "A Consumer Tip", address, and telephone number. At various places throughout the directory informational items appear which are directed to users of the classified section. A number of these items are headed by the words "a consumer tip" which offer the reader information concerning such subjects as wedding anniversaries, tornado safety rules, and ways to save energy. (Exhibit 1)
Recommendation That Petitioner's application for registration as an electronic repair dealer be approved. DONE and ENTERED this 27 day of July, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David M. Maloney Staff Attorney Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Robert D. Hurth, P.A. 2425 East Commercial Blvd. Marwayne Office Plaza, Suite 101 Ft. Lauderdale, Florida 33308
The Issue Whether the Petitioner, Macia Poole, was subject to an unlawful employment practice by Respondent, Westminster Village of Pensacola, on account of her sex or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact On April 3, 2015, Petitioner’s Employment Complaint of Discrimination and Petition for Relief were transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations for a formal administrative hearing to be held in accordance with section 120.57, Florida Statutes. On April 10, 2015, a Notice of Hearing by Video Teleconference was entered which set the final hearing for June 1, 2015, at 9:00 a.m., Central Time, (10:00 a.m., Eastern Time), at video teleconference sites in Pensacola, at the Office of the Judges of Compensation Claims, Video Teleconferencing Room, 700 South Palafox Street, Suite 305, Pensacola, Florida, and in Tallahassee, at the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. On May 4, 2015, one Subpoena Duces Tecum and four Subpoenas Ad Testificandum were issued at the request of Petitioner. On May 14, 2015, Petitioner electronically filed her Notice of Appearance in this proceeding. On May 26, 2015, Petitioner filed a Request to Reschedule Video Hearing. The Request made no allegation of an inability to attend the hearing, only that her attendance would be an “inconvenience.” The Request was denied. The filing of the Request is convincing evidence that Petitioner knew that the final hearing was scheduled to be heard in accordance with the Notice of Hearing by Video Teleconference. On June 1, 2015, at the scheduled date, time, and place, the final hearing was convened. Mr. Moran, representing Respondent, Westminster Village of Pensacola, made his appearance. Petitioner did not appear. The final hearing was recessed for twenty minutes to allow Petitioner to appear. During the recess, the undersigned confirmed that the Division had not received any communication from Petitioner of exigent circumstances that may have interfered with her appearance at the final hearing. After twenty minutes had passed, the final hearing was re-convened. Petitioner was not in attendance. Respondent was prepared to proceed, and had its witnesses in attendance at the Pensacola video location. Mr. Moran confirmed that he had received no emails from Petitioner, that being their normal form of communication. At 9:25 a.m., Central Time, (10:25 a.m., Eastern Time), the final hearing was adjourned. There was no evidence presented at the final hearing in support of Petitioner’s Employment Complaint of Discrimination and Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Westminster Village of Pensacola, did not commit an unlawful employment practice as to Petitioner, Macia Poole, and dismissing the Petition for Relief filed in FCHR No. 2014-01235. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2015. COPIES FURNISHED: Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Brian J. Moran, Esquire Moran Kidd Lyons Johnson, P.A. 111 North Orange Avenue, Suite 900 Orlando, Florida 32801 (eServed) Macia Deanne Poole Apartment 176 6901A North 9th Avenue Pensacola, Florida 32504 (eServed) Christopher R. Parkinson, Esquire Moran, Kidd, Lyons, and Johnson, P.A. 111 North Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455, and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Lamar "Marty" Campbell was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Mr. Campbell readily acknowledges that he has not had training or education in construction or contracting and has never held any licenses related to any type of construction or contracting. At all times material to the allegations of the Administrative Complaints, Johnston Handyman Services did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Lamar Campbell, resides in Gulf Breeze, Florida. After Hurricane Ivan, he and his roommate took in Jeff Johnston, who then resided in Mr. Campbell's home at all times material to this case. Mr. Johnston performed some handywork in Respondent's home. Mr. Johnston did not have a car, a bank account, or an ID. Mr. Campbell drove Mr. Johnston wherever he needed to go. At some point in time, Mr. Campbell drove Mr. Johnston to obtain a handyman's license in Santa Rosa County. Mr. Campbell did not apply for the license with Mr. Johnston and Mr. Campbell's name does not appear on this license. The license is in the name of Johnston's Handyman Services. Mr. Campbell is a neighbor of Kenneth and Tracy Cauley. In the summer of 2005, which was during the period of time when Mr. Johnston resided in Mr. Campbell's home, the Cauleys desired to have repairs done on their home to their hall bathroom, master bathroom, kitchen and laundry room. With the help of Mr. Campbell and others, Mr. Johnston prepared various lists of repairs that the Cauleys wanted performed on their home. In August 2005, Mr. Johnson and Mr. Campbell went to the Cauley's home and the proposed repairs were discussed with the Cauleys. There are documents in evidence dated August and October, 2005, which the Cauleys perceive to be contracts for the repairs to be done in their home. However, these documents are not contracts but are estimates, itemizing both materials and labor. The documents have the word "Estimate" in large bold type at the top and "Johnston Handyman Services" also at the top of the pages. The list of itemized materials includes electrical items, e.g., light fixtures and wiring. Also in evidence are documents dated August and October, 2005, with the word "Invoice" in large bold letters and "Johnston Handyman Services" at the top of the pages. Both Mr. and Mrs. Cauley acknowledge that Mr. Johnston performed the vast majority of the work on their home. However, at Mr. Johnston's request, Mr. Campbell did assist Mr. Johnston in working on the Cauley residence. Between August 5, 2005, and October 11, 2005, Mrs. Cauley wrote several checks totaling $24,861.53. Each check was written out to Marty Campbell or Lamar Campbell.1/ Mr. Campbell acknowledges endorsing these checks but asserts that he cashed them on behalf of Mr. Johnston, who did not have a bank account or identification, and turned the cash proceeds over to Mr. Johnston. Further, Mr. Campbell insists that he did not keep any of these proceeds. The undersigned finds Mr. Campbell's testimony in this regard to be credible. Work on the project ceased before it was finished and Mr. Johnston left the area. Apparently, he cannot be located. The total investigative costs, excluding costs associated with any attorney's time, was $419.55 regarding the allegations relating to Case No. 06-2764, and $151.25 regarding the allegations relating to case No. 06-3171, for a total of $570.80.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1), Florida Statutes; imposing a fine of $500 for a violation of Section 489.531(1), Florida Statutes, and requiring Respondent, Lamar Campbell, to pay $570.80 in costs of investigation and prosecution. DONE AND ENTERED this 9th day of March, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 9th day of March, 2006.
Recommendation Based upon the finding of facts and conclusions of law recited above, it is recommended that the agency's action in denying the Petitioner's application for registration as an electronic service dealer be sustained. DONE and ENTERED this 18th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Department of Business Regulation Division of Beverage The Johns Building Tallahassee, Florida 32304 William C. Kimberl, Director Division of General Regulation Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Mr. Arthur Resnick Pompano Beach Club Towers 111 Briny Avenue, Apt. 1105 Pompano Beach, Florida 33062
The Issue The issue in this case is whether the Electrical Contractors' Licensing Board should discipline the Respondent for violating section 489.533(1)(a), Florida Statutes (2013),1/ by violating section 455.227(1)(j), which prohibits "[a]iding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to this chapter, the chapter regulating the profession, or the rules of the department or the board."
Findings Of Fact The Respondent, Michael Ellis, is licensed in Florida as an electrical contractor and holds licenses EC0000680 and EC13003559. He has been licensed in Florida since 1986 and has not been disciplined prior to this case. In the summer and fall of 2013, the Respondent was the primary qualifying agent of M. Ellis Electrical, Inc. (Ellis Electrical). In the summer and fall of 2013, Clark Huls was not licensed as an electrical contractor in Florida. In August 2013, Ellis Electrical had a subcontract with Powerhouse, Inc. (Powerhouse), which had a contract with 7-Eleven, Inc. (7-Eleven), for the installation of hot food cabinets at several different 7-Eleven retail locations in Florida. The installation required electrical work (including subpanels, new circuits, outlets, and breakers) and had to be done by a licensed electrical contractor. Someone at Powerhouse referred Huls to the Respondent, and the Respondent hired him to do the installations for $1,400 for each of nine different 7-Eleven jobsites. It was the Respondent's initial intent to hire Huls as a subcontractor. The evidence is disputed and not clear as to exactly what Huls represented to the Respondent about his license status when the Respondent hired him. The evidence is clear that Huls did not provide him with licensure and insurance information at that time and was supposed to provide this information to the Respondent at the first jobsite. The Respondent did not initially check DBPR's website to verify Huls' license status, which was the prudent and appropriate thing for him to have done. The first work performed by Huls for the Respondent was on August 21, 2013. The Respondent was there to supervise and direct the work. Huls did not provide license and insurance information. By this time, the Respondent clearly knew or should have known that Huls was not licensed. At the third installation Huls performed, on August 24, 2013, the Respondent had an employee named Jason Ippolito deliver an employment package to Huls. Huls refused to complete and sign the employment paperwork because it would change the terms of his agreement with the Respondent to be paid $1,400 per jobsite. The Respondent allowed Huls to continue to work on installations while trying to resolve the subcontract/employment issue. In all, Huls completed nine installations between August 21 and September 3, 2013. When Huls asked to be paid $1,400 per jobsite, as originally agreed, the Respondent refused to pay because Huls was not licensed as a subcontractor and refused to complete the paperwork to be paid as an employee. Huls then placed liens on all nine 7-Eleven properties and contacted Powerhouse to be paid. In order to save its relationship with 7-Eleven, Powerhouse paid Huls $5,806 and deducted that amount from what it owed Ellis Electrical. On October 12, 2013, the Respondent filed a DBPR complaint against Huls for subcontracting without a license. DBPR filed an Administrative Complaint against Huls for unlicensed activity. Criminal prosecutions of Huls also were filed and were pending at the time of the final hearing in this case. In mitigation, in addition to his clean record as a long-time licensee, the Respondent presented that he was dealing with his wife's serious health issues during the summer and fall of 2013, which affected his ability to manage his jobsites. In addition, no consumer or member of the public suffered financial harm. Ultimately, the financial harm was borne by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Electrical Contractors' Licensing Board find the Respondent, Michael Ellis, guilty as charged, fine him $1,000, require him to pay reasonable investigative costs, and take two additional hours of continuing education with an emphasis on laws and rules. Jurisdiction is retained for 30 days after the final order to determine reasonable investigative costs if the parties cannot reach an agreement. DONE AND ENTERED this 13th day of March, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2015.
The Issue Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a (1) 1,000 ohm resistor 2 watt, when in fact it was not replaced; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a "Rebuilt Tuner", when in fact the work was not performed; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976,by charging Joseph Scozzafava for replacement of two (2) 6GH8 tubes, when in fact they were not needed; in violation of Section 468.159(1)(d) , Florida Statutes. The charging document in this cause, to wit, the Notice to Show Cause, had originally charged Henry Adkins and Sharon Adkins with the failure to identify the State Registration on invoice #3078 dated January 3, 1976, as required by Rule 7B-2.12(b), Florida Administrative Code. This count of the Notice to Show Cause was voluntarily dismissed by the Petitioner at the commencement of the hearing.
Findings Of Fact This cause comes on for consideration based upon the Notice to Show Cause of the Petitioner, which is complaint No. 108000-51 before the Petitioner, State of Florida, Department of Business Regulation, Division of General Regulation. The complaint is addressed to the Respondents, Henry Adkins and Sharon Adkins, his wife, who trade as Lauderdale Lakes T.V. and is directed to the following business entities owned by Henry Adkins or Henry Adkins and Sharon Adkins. The corresponding numbers which are reported here pertain to the license numbers assigned by the Petitioner to Henry Adkins or Henry Adkins and Sharon Adkins. Those licenses are for All-State T. V., No. 5079; Tower T.V., No. 6108; Lauderdale Lakes T.V., No. 5069; Inter-City T.V., No. 2895; X-Ray T.V., No. 2914; and M & H Electronics., No. 4854. Henry Adkins appears as the owner on all licenses. Sharon Adkins appears as the co-owner on the license for M & H Electronics, No. 4854. Before presenting the case for consideration, the parties entered into these factual stipulations: The Division of Administrative Hearings has jurisdiction to consider this case. The Notice of Hearing in this cause is timely. Henry Adkins is listed in the six licenses referred to above and each of those licenses have a mailing address of 3504 NW 10th Avenue, Fort Lauderdale, Florida 33309. In addition, those licenses referred to above and the ownership stated are correct as to the existence of the entity, the ownership and the number assigned to the various entities by the Petitioner. The invoice of Lauderdale Lakes T.V., No. 3078, is authentic. The State of Florida, Department of Business Regulation, Division of General Regulation is the owner of a 1972 RCA color television which is the subject of this case. Three television tubes, to wit: two 6GH8 tubes, and one 6-CB6 tube are the property of the State of Florida, Department of Business Regulation, Division of General Regulation. Joseph Scozzafava is not the owner of the subject 1972 RCA color television, nor was the money paid for the repair of the said television money of Mr. Scozzafava. The invoice referred to above may be found as Petitioner's Exhibit No. admitted into evidence. The television set is Petitioner's Exhibit No. 2 admitted into evidence, and the three tubes are Petitioner's Composite Exhibit No. 3 admitted into evidence. In late January, 1976 employees of the Petitioner, operating on complaints, prepared a television set for purposes of ascertaining whether or not the Respondent, Henry Adkins, d/b/a Lauderdale Lakes T.V., was. operating in violation of Chapter 468, Florida Statutes. In furtherance of their investigation they took tile 1972 RCA television set which has been mentioned as being Exhibit No. 2, and played the set for a couple of days to determine whether or not it was in good working order. From an observation point of view, there were no malfunctions during the test period. In the color circuit to include all the major components such as the tuner, transformer, and resistors, all items checked out as operating properly. In addition, 15 tubes within the set were checked by tube fester and the tubes proved to be acceptable. (The tube tester had not been certified.) After checking the set out, Frank Butler, an investigator with the Petitioner and Certified Electronics Technician, overloaded a tube within the color circuit. The specific tube is a 6-CB6 burst amplifier. The effect of overloading this tube was to remove the color from the set, such that it would play only in black and white. The created malfunction in this tube did not have an adverse effect on the other components within the set. The employees of the Petitioner also marked a number of the tubes in the set by crimping the connectors on the tubes by way of identification. An operative 6-CB6 burst amplifier was then inserted in the set and the set was played again for two days, within which time it operated successfully. The Petitioner's employees then contacted one Joseph Scozzafava, an employee with the Department of Business Regulation, Division of Beverage. The purpose of the contact with Scozzafava was to allow him to take the television set owned by the State and to contact Lauderdale Lakes T.V. for purposes of having that organization make repairs on the subject television. The idea was that the defective 6-CB6 tube would he left in the set so that the television only played black and white. When they took the set to Scozzafava in late January, 1976, they showed him that the set operated on all local-stations and then removed the operative 6-CB6 tube and replaced it with the inoperative tube and left that tube in the set. The Petitioner's employees then instructed Scozzafava to call Lauderdale Lakes T.V. to have the repairs effected. To achieve this end, Scozzafava was paid $100.00 by the Petitioner and in turn would write a check from his own account for the amount of the total cost of repairs. The set was picked up from Scozzafava on January 27, 1976. The pickup was made by an employee of the Respondent, Henry Adkins, in a truck listed to the license, Inter-City T.V. The television set was repaired under an invoice of Lauderdale Lakes T.V., a license held by Henry Adkins. That invoice is the Petitioner's Exhibit No. 1 admitted into evidence. The facts repeal that two 6GH8 tubes were replaced by employees of the Respondent, Henry Adkins, and charged to Scozzafava, when it was in fact unnecessary to replace those tubes. Those tubes may be found as part of Petitioner's Exhibit No. 3 admitted into evidence, and when tested subsequent to the time the television set was returned to the employees of the Petitioner, were found to be operable over a period of one or more days arid when played during the course of the hearing, were found to be in good operating condition. The charges and the indication of replacement may be found in the invoice and the invoice was executed by an employee of Henry Adkins, the Respondent. That employee was working for Lauderdale Lakes T.V. The invoice also reflects the replacement of one 1,000 ohm 2 watt resister, when in fact no replacement of the resister occurred. Scozzafava was charged for this item which was not replaced. Finally, there is an indication that the tuner within the set was rebuilt and a charge made to Scozzafava for that service. The Petitioner's employees had placed wax and tape across the shield which covers the inner parts of the tuner and that wax and tape had not been disturbed during the pendency of the time which the set was with the employees of the Respondent. The tuner was not rebuilt, notwithstanding the claim by witnesses of the Respondents, to the effect that certain repairs could have been made to the surface of the tuner without the necessity to remove that shield. The evidence leads to the conclusion that the tuner was not rebuilt. In summary, Scozzafava paid $88.45, to Lauderdale Lakes T.V. from funds provided him by the Petitioner. Of that amount paid, $8.40 was paid for two 6GH8 tubes; $6.25 was paid for the one 1,000 ohm 2 watt resistor which was not installed and $21.00 was paid for rebuilding the tuner, when in fact the tuner was not rebuilt. Some portion of the labor charge of $32.50 went toward these items; however, it is unclear what portion of that charge pertains to those items. As briefly mentioned before, the television set was returned to Scozzafava, who in turn gave it to the Petitioner's employees, who kept the set until such time as the case was brought. Employees of the Respondent, Henry Adkins, driving an Inter-City T.V. truck, returned three tubes, one 6-CB6 and two 6GH8; they did not return a 1,000 ohm 2 watt resister. The balance of the $100.00 paid to Scozzafava for the purposes of assisting the Petitioner was returned to the Petitioner. There was no testimony to the effect that either Henry Adkins or Sharon Adkins were directly involved in the pick-up or repair of the television set. Sharon Adkins was involved in the billing process, based upon a cost estimate given to Scozzafava in the amount of $85.00. Both Respondents indicated that they make a background check of all employees hired, for purposes of determining the employees' integrity. The Respondents, through Sharon Adkins, also indicated that they had made attempts to locate all employees who were involved with the pick-up or repair of the television set and were unsuccessful in locating them due to the death of one employee and the inability through use of a private detective to locate the other individuals. Henry Adkins also indicated that he had fired employees in the last two years because those employees put in unnecessary parts or overcharged for parts. The Petitioner has charged the Respondents with committing acts of fraud and dishonest dealings by charging Joseph Scozzafava for the one 1,000 ohm watt resister; charging him for the rebuilt tuner and replacing the two 6GH8 tubes when in fact they were not needed. To the Petitioner, these acts were in violation of Section 468.159(1)(d), Florida Statutes. That provision reads: "In violation of registration; civil penalties.- The Division may refuse to validate or may invalidate temporarily or permanently the registration of a service dealer for any of the acts or omissions related to the conduct of his business done by himself or any employee, partner, officer, or member of the service dealer; (d) Committing any other act which constitutes fraud or dishonest dealing." By charging for the two 6GH8 tubes that were not needed; by failing to replace the one 1,000 ohms 2 watt resister, and charging for such replacement and for charging to rebuild a tuner which was not rebuilt, the employees of the Respondents are guilty of fraud and dishonest dealing. For those violations and under the exact language of the statute, the Respondents would appear to be guilty of a violation of Section 468.159(1)(d), Florida Statutes. However, the law does not contemplate that an employer is the absolute insurer of all the acts of his or her employees. Absent a showing of direct involvement on the part of the Respondents in the acts which constituted fraud and dishonest dealing, the Petitioner must show negligence or a lack of due diligence by the Respondents, In the Respondents' supervision of the employees who have committed the acts of fraud and dishonest dealing. (See Taylor v. State Beverage Department, 194 So.2d 321 (2nd DCA, 1967).) An isolated incident such as the one in the case under consideration does not satisfy the requirement that the Petitioner show negligence or a lack of due diligence on the part of the Respondents. Therefore, the Petitioner has failed to establish a violation on the parts of the Respondents as it pertains to the electronic service dealer registration Nos. 5069, 5079, 2895, 4854, 6108 and 2914, which are held by Henry Adkins and Sharon Adkins and Henry Adkins, solely. Full consideration has been given to the proposed findings of facts and conclusions of law submitted and when appropriate are incorporated in this Recommended Order.
Recommendation It is recommended that the Notice to Show Cause against Henry and Sharon Adkins, which is recorded as complaint No. 108000-51, pertaining to electronic service deal registration Nos. 5069, 5079, 2895, 4854, 6103 and 2914 be DISMISSED. DONE AND ENTERED this 30th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Staff Attorney State of Florida, Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Robert D. Hurth, Esquire 2425 East Commercial Boulevard Marwayne Office Plaza, Suite 101 Fort Lauderdale, Florida 33308
The Issue The issue for resolution is whether Respondent committed the alleged violation, and, if so, what disciplinary action is appropriate.
Findings Of Fact Frank Badalucco is Vice-president and Resident Agent of Fashions Corporation of America, Inc., the corporate owner of Hair Studio 2000. Mr. Badalucco also manages the studio, located in Orlando, Florida. The facility is licensed as a barbershop under license number BS- 0009172, issued on September 29, 1986. Fashions Corporation purchased the facility on or about September 15, 1986, from Kathy Wawrizniak. Shortly after the purchase, Frank Badalucco checked the employees to make certain they were properly licensed. Mabel Marin, one of the employees, told him that her purse had been stolen in December 1985, and that her license was lost. She had a number which she said was her current license number. Mr. Badalucco told her to take care of getting a duplicate. On August 6, 1987, Valerie Flowers, an inspector for the Department of Professional Regulation, inspected Hair Studio 2000. Mabel Marin was styling a patron's hair at a station in the shop. She did not have a license posted at her station, but had a paper with a license number on it. Ms. Marin told the inspector that it was her number and that her license was current. She also said that she had lost her license, but that she was given this number over the telephone. It is not the policy of the Department to give license numbers over the telephone. When Inspector Flowers checked the records, she found that the number Ms. Marin had posted was actually a number belonging to another licensee in Sunrise, Florida. Ms. Flowers verified that Mabel Marin had an inactive license. Ms. Marin insisted that she had renewed her license on time, but that it was not sent to her. She claimed to have a money order to prove this. Badalucco told Ms. Marin to get the money order and take it to Ms. Flowers office. Although she made several appointments by telephone, Mabel Marin never brought in her license or proof of application. At the hearing, Frank Badalucco produced a copy of Ms. Marin's money order in the amount of $70.00, made to the State Board of Cosmetology, and dated January 14, 1986. He also had a copy of Ms. Marin's license, showing an expiration date, June 30, 1988. He said that when they checked, they found that the money order had never been cashed. After the inspector filed her complaint, Ms. Marin sent another money order and received her license. It is apparent that Ms. Marin may have attempted to obtain a duplicate license after her purse was stolen. She never followed through, however, and the license was not renewed until after the violation was cited by Valerie Flowers. In the meantime, that license had expired and reverted to inactive status on July 1, 1986. The license was reactivated by payment of a regular renewal fee of $20.00 and reactivation fee of $50.00 on August 26, 1987.
Recommendation It is, therefore, RECOMMENDED: That Respondent be found guilty of the violations, as charged and be required to pay an administrative fine of $200.00. DONE and RECOMMENDED this 29th day of March, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Frank Badalucco Hair Studio 2000 955 West Lancaster Road Orlando, Florida 32809 Myrtle Aase, Executive Director Board of Barbers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
