The Issue The issue posed for decision herein is whether or not the Respondent, State of Florida, Department of Professional Regulation, Electrical Contractors Licensing Board, erred and/Dr abused its discretion in its denial of Petitioner's application for statewide certification on the basis that it failed to demonstrate that it possessed adequate financial responsibility.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the Proposed Recommended Order and the entire record compiled herein, the following relevant facts are found. On March 19, 1979, Petitioner, Eric Copenhagen, t/a Aries Electric, filed an application with the Electrical Contractors' Licensing Board (herein called the Respondent) for statewide certification as an electrical contractor. (Respondent's Composite Exhibit 1.) On May 17, 1979, the Respondent denied Petitioner's application on the grounds that the qualifying agent, Eric R. Copenhagen, did not show financial responsibility and the business entity, Aries Electric, Inc., did not show financial responsibility and sufficient business and credit reputation as is set forth and required pursuant to Section 463.184(3), Florida Statutes (1977). l/ (Testimony of Board Member Kenneth Dunworth.) The Respondent denied Petitioner's application for certification based on Petitioner's response to Question 17(b) on the application to the effect that there was outstanding at the time of the demise of Kahn-Copenhagen Electric, Inc. a sum due and owing Consolidated Electric Company of $49,000.00; a credit report which reflected a tax lien in the amount of $52,440.00, which lien became effective approximately August 3, 1973, and remains unpaid; and a lien due and payable of $73.00 effective May 5, 1973. (Respondent's Exhibits 2, 3 and 4.) During the hearing, the evidence adduced established that the approximately $49,000.00 obligation owed to the supplier, Consolidated Electric, Inc., stems from a Housing and Urban Development (HUD) project undertaken by Petitioner's predecessor corporation, Kahn-Copenhagen Electric, Inc., and that the amount owed to the supplier was paid by the General Contractor as a result of litigation between petitioner and the. General Contractor. The evidence reveals that the lien which was outstanding at the time that the Board reviewed Petitioner's application for certification which was due to the Florida Department of Commerce has now been satisfied. There remains, however, outstanding obligations in the form of a tax lien due the Internal Revenue Service in the amount of approximately $53,000.00. The Petitioner contends that he was unaware of the existence of the tax lien and that there had been an agreement worked out between the Internal Revenue Service and himself to satisfy the outstanding amounts due and owing the Internal Revenue Service which grew out of the dispute between the supplier, the General Contractor and Kahn- Copenhagen on the HUD project. The records, however, do not reflect that these outstanding tax obligations have been satisfied at the time of the hearing. (Petitioner's Composite Exhibit 1.) In such circumstances, it appears that the Board, at the time that it reviewed Petitioner's application for certification, acted within its discretion in denying the Petitioner's application for certification due to an absence of showing of financial stability and/or responsibility. (Section 468.184(3), Florida Statutes.) I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent (Board's) denial of the Petitioner's application for certification be SUSTAINED. 4/ ENTERED this 10th day of June, 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th of June, 1980.
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made: At all times material to this case, the Respondent, William Cooper, was licensed as an electrical contractor in the State of Florida, holding license number ER 0007444. In October 1986, Dr. and Mrs. Gadi Gichon contracted with a general contractor named Construction Pros in connection with the remodeling of the Gichon residence in Fort Lauderdale, Florida. Respondent was hired by Construction Pros as the subcontractor for the electrical work on the residence. Respondent completed a portion of the electrical work pursuant to his subcontract. Prior to July 16, 1987, the Gichons fired Construction Pros as their general contractor. On July 16, 1987, the Respondent contracted in writing with the Gichons to complete the work he had started as the electrical subcontractor for Construction Pros and to do certain additional work specified by the contract. The Gichons agreed to pay Respondent the sum of $5,345.54 to complete the work he had started as a subcontractor and to do the additional work. The contract price included labor and materials. The Gichons paid Respondent $4,500.00 on July 16, 1987, and agreed to pay Respondent the balance of the contract price upon completion of the job. Respondent's work on the Gichon residence progressed very slowly after July 16, 1987, despite repeated telephone calls to Respondent by the Gichons. In response to the telephone calls Respondent would send one or two men to placate the Gichons by making a brief appearance at the Gichon residence. These men did not do any meaningful work on the project. On October 1, 1987, the Gichons sent Respondent a certified letter demanding that Respondent complete the work in 10 days. Respondent telephoned Dr. Gadi Gichon at his office in response to the letter of October 1, 1987. Respondent told Dr. Gichon that he had not returned to complete the project because he had not been paid for certain fixtures by the fired general contractor. Respondent made no further effort to complete the work. The Gichons hired another electrical contractor to complete the work started by Respondent and to do additional work. The second electrical contractor found Respondent's work incomplete but ready for a punchlist inspection. The second electrical contractor received its takeover permit on November 24, 1987, and completed the work started by Respondent in less than a week. Palm Coast Electrical charged the Gichons approximately $200.00 more than the Gichons would have paid had Respondent completed his contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds Respondent guilty of having violated Section 489.533(1)(f) and (p), Florida Statutes, and which imposes an administrative fine of $1,000.00 against Respondent and which further issues a reprimand to Respondent for his violations of Section 489.533(1)(f) and (p), Florida Statutes. DONE and ORDERED this 22nd day of May, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 22nd day of May, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-738 The findings of fact contained in Paragraphs 1, 2, 3, 4, 6, 7, 10, 11, 14, and 16 of Petitioner's proposed findings are adopted in substance, insofar as material. The findings of fact contained in Paragraphs 5, 13, 15, 17, and 18 of Petitioner's proposed findings are immaterial. The finding of fact contained in Paragraph 8 of Petitioner's proposed findings is unsubstantiated by the evidence. The finding of fact contained in Paragraph 9 of Petitioner's proposes findings that the Gichons had live electrical wires in their home is unsubstantiated by the evidence. The finding of fact contained in Paragraph 9 of Petitioner's proposed findings that the Gichons had incomplete work in their home is adopted in substance. The finding of fact contained in paragraph 12 of Petitioner's proposed finding that Respondent did not complete the Gichon's job is adopted. The finding of fact contained in Paragraph 12 of Petitioner's proposed findings that Respondent did not respond to the letter of October 1, 1989, is rejected as being contrary to the evidence. The finding of fact contained in Paragraph 19 of Petitioner's proposed findings is subordinate. Respondent's statement in his letter filed May 8, 1989, is rejected as being contrary to the weight of the evidence. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 William Cooper 4400 Northwest 15th Street Lauderhill, Florida 33313 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Pat Ard, Executive Director Electrical Contractors Licensing Board Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729
The Issue The issue in this case is whether the Pinellas County Construction Licensing Board should discipline the Respondent for alleged willful or deliberate disregard and violation of applicable building codes.
Findings Of Fact The Respondent, Henry C. Robertson, is a certified electrical contractor, holding license number C-2720. In June, 1993, the Respondent was the exclusive electrical contractor for a residential subdivision project in Pinellas County that had been underway since 1991. Altogether, it consisted of several hundred residential units. The Respondent pulled the electrical permits for all of the units in the project. There was a single entrance to the subdivision via security gate. At its end, the entrance road (Arabian Lane) formed a "T" with the other road in the subdivision. By June, 1993, most of the subdivision already was built out. On June 15, 1993, the Respondent called the Board staff for final inspection on one half of a duplex located at 1757 Arabian Lane. When the inspector arrived, electrical work was being done on the other half of the duplex. Neither of the two workers on the job was a master or a journeyman electrician. One declined to answer the inspector's questions and just walked off the jobsite; the other stayed but could not give any information as to the whereabouts of the journeyman. No other workers were in the vicinity, i.e., in either side of the duplex, at adjacent properties, or within sight. Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code, 1993 Edition, limits the issuance of electrical permits to licensed electrical contractors and provides: "Where any electrical work is being done a master or journeyman electrician shall at all times be present on the job." According to the Respondent's testimony, there was a journeyman electrician somewhere in the subdivision who could have been contacted by the two workers at 1757 Arabian Lane if they needed help or advice. The Respondent himself also visits all jobsites at least once a day. This testimony was not refuted or contradicted. The Board's Chief Electrical Inspector, Joseph Bolesina, testified that, in interpreting Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code, his office considers each electrical permit issued to define "the job" to which it applies. In the case of 1757 Arabian Lane, each side of the duplex had its own electrical permit. However, he conceded that, if work was in progress on both sides of the duplex, only one master or journeyman would be required for the two permits involved. Neither the Board nor his office has specified any other circumstances under which a single master or journeyman electrician could "at all times be present" at work being done on more than one permit. He testified that, in his view, it would depend on whether the master or journeyman electrician would be readily accessible and available to check work and to help and give advice as necessary. He testified that, in his view, the presence of a master or journeyman electrician "somewhere in the subdivision," rotating between individual jobsites, would not qualify, even if they could be contacted immediately by radio or cellular phone. In this case, neither of the workers was able to contact the journeyman electrician who was supposed to have been available and accessible to them. The Respondent testified that he believed his work methods on June 15, 1993, met the letter and the spirit of the building codes, especially in light of the difficulty he and other electrical contractors have finding and hiring journeymen. He testified that he thought the "job" consisted of all the work going on at the subdivision project, not each individual unit. In August, 1992, the Respondent stipulated to a $150 fine to resolve Board Complaint No. C92-330, alleging a violation of Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code by a company he qualified (although he was not involved personally in the violation). In that case, the journeyman left the jobsite to get supplies that were short. In May, 1993, the Respondent stipulated to another $150 fine to resolve Board Complaint No. C93-8, alleging another violation by the same company. (Again, the Respondent qualified the company but was not involved personally in the violation). In that case, the journeyman electrician was not due to arrive at work for an hour when the workers were found unloading and stretching out cord in preparation for beginning work without him. In April, 1994, the Board filed Complaint No. C94-96 for another alleged violation, this time by a company the Respondent was operating personally. The Respondent admitted the charges. In that case, the journeyman left the jobsite to get PVC cement. The prior incidents did not raise the identical issue present in this case. However, the Respondent testified that he has had several occasions to discuss with Board staff the subject of compliance with Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code. While those discussions may not have specified all circumstances under which a single master or journeyman electrician could "at all times be present" at work being done on more than one permit, they should have made it clear to the Respondent that the journeyman electrician at least had to be available and accessible to the workers. In this case, the two workers on the jobsite were unable to tell the inspector where the journeyman was. The Board has published "Guidelines for Disciplinary Action" which provide for a $300 fine as the "typical" penalty for the first "minor" infraction and, for repeat "minor" infractions: an "additional $500 up to three; then mandatory appearance before the Board." The Guidelines also list aggravating and mitigating circumstances which focus on the harm done by the offense, the licensee's efforts to rectify the situation, and whether there is a history of similar offenses by the licensee. They also authorize suspension or revocation and fines "not to exceed $1,000 per count."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order: (1) finding the Respondent guilty of willfully or deliberately violating Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code, as charged; and (2) fining him $500. RECOMMENDED this 13th day of January, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. (The Respondent does not contend that he is "exempt" but rather that the entire subdivision should be considered a single "job.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that he cannot find any journeyman electricians for residential work. (Proven only that the Respondent has had difficulty finding and hiring them.) Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board Suite 102 11701 Belcher Road Largo, Florida 34643-5116 Henry C. Robertson Robertson Electrical Services, Inc. 15316 Indian Head Drive Tampa, Florida 33618
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, Respondent, Donald J. Jernigan, possessed Florida Electrical Contractor's License No. ER0007589. Kenneth L. Smith is a general contractor in Lakeland, Florida. Respondent worked for him on occasion as a subcontractor in the electrical area. In early March 1983, Smith hired Respondent to do some electrical work on a duplex he owned which had been damaged by fire. At the time, the apartment was under contract for sale, and Mr. Smith had until April 1, 1983, to fix it up for transfer. Mr. Smith emphasizes that he had an express understanding with Respondent that all work had to be done by April 1, 1983, or he would lose the sale. Respondent, in a late-filed exhibit, presented a letter from William S. Chambers, III, a real estate agent who was involved in the proposed sale of the property in question. Mr. Chambers acknowledges that the sale was not consummated but, while not detailing the actual reason for the sale falling through, contends that at no time was the fact that the repairs were not completed given or used as a reason for the failure of the sale to go through by either party. This does not alter the fact that Mr. Smith requested that the repairs be completed by April 1, 1983. Smith called Respondent several times prior to April 1 to insure that the electrical work was done on time. At a point late in the sequence of events, he understood that the dry wall was due to be installed and the required electrical inspection had not been accomplished. When he pointed this out, Respondent told him to go ahead and hang the dry wall, as the City could inspect from up in the ceiling. Mr. Smith did this based on the representation of the Respondent; and when the final inspection was done, the inspector would not pass the property because preliminary inspection had not been accomplished. He indicated that a different electrical contractor would have to examine the work and certify that it was done properly before it could be passed without pulling out all the dry wall for a visual inspection. At this point, Mr. Smith hired Lamar Smith of Southeastern Electric to accomplish this inspection and discharged the Respondent. When Lamar Smith arrived at the apartment and turned on the power, the only things that worked in the entire apartment were the dishwasher, the disposal, and two kitchen receptacles. In the course of his inspection, he found that several home runs were left out (several feeder lines were not present) ; numerous junction boxes in the attic were not made up properly (wires were left out and not put in the boxes as required); no junction boxes in the attic were grounded; some breakers were left out in the master panel; and the door bell did not work. According to Mr. Smith, at first glance from the inside of the apartment, the electrical work looked as though it were complete; but in reality, all the rough-in had not been accomplished, and it took him two days to do the work properly. According to Mr. Meeks, the electrical inspector for the City of Lakeland and the individual who wrote the permit for this particular work, Respondent called in for the rough-in inspection on March 31, 1983. When Meeks went out to the property to conduct the inspection, he found that the dry wall was already in and he could not accomplish it. Meeks told Respondent at that time he would have to either remove the dry wall or have another registered electrician certify the wiring before they would permit that work to continue. When an apartment or any property is damaged by fire, a permit is required to rewire the damaged premises for power. This permit is required by Lakeland City Ordinance. Meeks also indicated that if a remodeling job required added wiring without tearing out the wall, the inspectors would inspect by going into the attic and crawlways if possible. However, if they were called to inspect the area that was previously open for inspection and was improperly closed in prior to inspection, they would not go up into the attic or into the crawlways to accomplish the inspection. That is policy of the Inspectors' Office. In that regard, according to Harold G. Brooks, a city permit inspector who inspected the property in question immediately after the fire to see if power in the unburned area could be turned on, the majority of damage to the burned area was in the kitchen ceiling and in the hall. This description is consistent with that of Mr. Ken Smith, the owner, who indicated that the dry wall was required in the kitchen and dining room. For some reason, the dry wall was also replaced on the living room ceiling and the back room ceiling. Respondent contends that he was trying to do this job as quickly as possible consistent with the work load he had at the time. He agrees that it was in early March when he agreed to take on the job. He looked at the house the day after it burned and presented a proposal for repairs that afternoon or the next day. He started work on the project right away and stayed on the project from the time he started work up until the inspection problem. Respondent does not recall Mr. Smith setting any deadline for completion, only a need to finish the job as quickly as possible. Mr. Jernigan admits he did not request a roof end inspection when the basic wiring was completed before dry wall. He states that this house is the type of house that may have had boxes already installed that could not be found. He does not feel that it was his responsibility to give authority to cover up the walls or the ceiling and that that decision was made by Mr. Smith, the owner. The work that he did, he contends, could have been checked through the attic shuttle, and he claims he would have corrected any deficiencies found. He further claims he was never given an opportunity to remove the dry wall for inspection prior to the final inspection and the requirement to have another electrician certify the work. Whatever the delay, it was occasioned by Respondent's failure to get the roof end inspection performed. According to Ordinance No. 2304 of the City of Lakeland, Florida, a master electrician (Respondent was a master electrician), shall request any required inspections. By Subsection (2), an inspection is required prior to wiring being concealed, and failure to timely request such an inspection constitutes a violation of the City Code. This inspection was not requested by Respondent as required by the ordinance. At a special meeting of the Building Code Board of Examiners for the City of Lakeland, Florida, held on April 25, 1983, a complaint against Respondent was considered. Respondent was charged by the electrical inspectors with negligence, incompetence, or misconduct in the doing of electrical work and a willful and deliberate disregard in violation of the City's Electrical Code. On May 24, 1983, the Chairman of the Board, on behalf of the Board, entered an Order finding that the Respondent was guilty of negligence in the performance of electrical work and willful and deliberate disregard in violation of the City of Lakeland Electrical Code. The Board went on to suspend for 90 days the Respondent's Certificate of Competency issued by the City of Lakeland and required that he pass an appropriate examination at the end of the 90-day period prior to receiving a new Certificate of Competency.
The Issue Whether the Respondent failed to provide proof of workers' compensation coverage or exemption, and proof of having completed 14 hours of approved continuing education in response to an audit conducted by the Electrical Contractors Licensing Board for the biennium commencing September 1, 1996, and terminating on August 31, 1998, in violation of Subsection 489.533(1)(o), Florida Statutes, by violating Subsections 489.515(3) and 489.517(3), Florida Statutes, and Rule 61G6- 9.011, Florida Administrative Code, as alleged in the Amended Administrative Complaint.
Findings Of Fact The Petitioner is the State of Florida, Department of Business and Professional Regulation (DBPR), the state agency charged with regulating the practice of electrical contracting in Florida and those licensed under Chapter 489, Florida Statutes, pursuant to Section 20.165, and Chapter 455, Florida Statutes. The Respondent is, and has been at all times material to the allegations in the Amended Administrative Complaint, an electrical contractor licensed by the Electrical Contractors Licensing Board. From 1987 until 2000, the Respondent was a registered electrical contractor, holding license number ER 0010816. Since August of 2000 the Respondent has been a certified electrical contractor holding license number EC 0002356. The Respondent's practice pursuant to his registered license was a prerequisite to issuance of his certified license. All insurance and continuing education requirements for renewal of a license issued by the ECLB are set forth in Sections 489.515 and 489.517, Florida Statutes, as well as Rule 61G6-9.004, Florida Administrative Code, and are identical for certified and registered electrical contractors. In March of 1999 the ECLB conducted a random audit of the insurance and continuing education requirements established in Rule 61G6-9.004, Florida Administrative Code, for the biennium commencing September 1, 1996, and terminating August 31, 1998. The Respondent was one of the licensees randomly chosen for this audit. In response to the initial audit letter sent to the Respondent on March 17, 1999, the Respondent submitted insurance and continuing education documentation. This documentation reflects: no evidence of workers' compensation coverage or exemption for the audit period; no evidence of approved continuing education for the audit period; and no evidence of required liability insurance for the audit period. The continuing education documentation submitted by the Respondent was for the prior biennium, in February 1996. On July 19, 1999, the ECLB forwarded the Respondent a follow-up letter, indicating that he was still lacking the documents enumerated in Finding of Fact Number 5. In response to this letter, the Respondent submitted documentation of the required liability insurance and of workers' compensation for May 1, 1997 through June 22, 1999. At hearing, the Respondent produced a document similar to those previously provided to the DBPR documenting his workmen's compensation insurance from March 1, 1995 to May 1, 1997. The date of this document was the same as the date on the materials previously furnished to DBPR. The Respondent testified that his insurance agent had faxed the requested documents to DBPR and sent copies to him. He received all of the documents substantiating his insurance from May 1, 1997 until June 22, 1999. His agent presumably forwarded or faxed the same documents to DBPR. DBPR produced all the documents except the one for the period of March 1, 1995 until May 1, 1997. The Respondent provided enough information to raise a genuine question whether this document was lost by DBPR. It is concluded that it is as likely DBPR lost the record as it is the record was not sent. There was no additional documentation of the required continuing education submitted at hearing. Subsequent to the completion of the audit, the ECLB initiated a complaint with the Bureau of Consumer Services at DBPR. This complaint alleges that the Respondent failed to document required workers' compensation coverage or exemption for the entire audit period and failed to document required continuing education within the audit period. The Respondent was initially issued citations for resolution of the alleged violations herein. Each of these citations provided for a $500 administrative fine. The continuing education violation was documented as DBPR case number 2000-08338 and the workers' compensation violation was documented as 2000-05654. The Respondent chose to dispute these citations, and as a result, this matter was handled pursuant to the provisions of Section 455.225, Florida Statutes. The Respondent has failed to document completion of hours of board approved continuing education between September 1, 1996 and August 31, 1998. The Respondent failed to obtain any board approved continuing education between September 1, 1996 and August 31, 1998. In DBPR case number 2000-08338, the Petitioner incurred non-legal costs in the amount of $31.70. In DBPR case number 2000-05654, the Petitioner incurred non-legal costs in the amount of $42.47. However, this cost may not be recovered.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered imposing an administrative fine of $500 against the Respondent for Count II of the Amended Administrative Complaint. It is further recommended that the Respondent be required to pay the non-legal costs incurred by the Petitioner in both agency cases totaling $31.70. DONE AND ENTERED this 14th day of September, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 14th day of September, 2001. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 David Karably Post Office Box 12 Earleton, Florida 32631 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the charged violations of Section 489.127(1)(f), Florida Statutes (2006), and Section 489.531(1)(a), Florida Statutes (2006), and if so, what penalty, if any, is warranted.
Findings Of Fact The Petitioner is an Agency of the State of Florida charged with regulating the practice of contracting and the licensure of those engaged in the practice of contracting of all types, in accordance with Section 20.165, Florida Statutes, as well as Chapters 455 and 489, Florida Statutes. The Respondent engages in re-modeling and other construction-related work both as his own business and employment by a certified general contractor. This case arose upon a Complaint filed with the Petitioner Agency by Mr. Kenneth Hatin. The Complaint asserted his belief that the Respondent had engaged in a contract to construct an addition on his home, and after being paid substantial sums of money, had wrongfully left the job and never finished it. The residence in question is co-owned by Mr. Hatin and his fiancée, Ms. Beverly White. Ms. White's first cousin is Ms. Julie Crawley. Ms. Crawley is the Respondent's fiancée. Mr. Hatin and the Respondent were introduced by Ms. Crawley and Ms. White. Mr. Hatin and the Respondent thus met socially and as they got to know each other discussed Mr. Hatin's desire to have an addition placed on his home. The addition consisted of a pool enclosure to be constructed on his property located at 33 Botany Lane, Palm Coast, Florida. Mr. Hatin expressed the desire to have the Respondent assist him in constructing the pool enclosure. The Respondent agreed to do so. The Respondent is employed by his brother, who is a Florida-Licensed General Contractor, but neither the Respondent nor his business, JR. Wittmer's Remodeling, Inc., are licensed or certified to engage in contracting or electrical contracting. In accordance with his agreement with Mr. Hatin, the Respondent provided labor and assistance with the renovation project, including digging ditches, picking-up supplies and being present at the work site. In addition to the Respondent, other friends and family members of the protagonists assisted with the project, including the Respondent's son, Ms. Crawley's son, Mr. Hatin's employer, Ms. White's brother-in-law, and Mr. Hatin himself. This was, in essence, a joint family/friends cooperative construction project. Over the course of approximately five months during the construction effort, Mr. Hatin wrote checks to the Respondent in the total amount of $30,800.00. All contractors or workmen on the job were paid and no liens were placed on Mr. Hatin's property. The checks written were for the materials purchased and labor performed by tradesmen or sub-contractors engaged by the Respondent and Mr. Hatin for various aspects of the job such as roofing, tile or block laying, etc. The Respondent received no fee or profit in addition to the amounts paid to the material suppliers, contractors, and laborers on the job. It is not entirely clear from the record who prepared the contract in evidence as Petitioner's Exhibit four, or the document that the parties treated as a contract. It is not entirely clear who actually signed it, but the document was drafted relating to the work to be done on Mr. Hatin's home (the contract). Mr. Hatin maintained that the Respondent prepared and signed the contract. Ms. Crawley testified that the contract was actually prepared by herself and Ms. White (for "tax purposes"). It is inferred that this means that the contract was prepared to provide some written evidence of the amount expended on the addition to the home, probably in order to raise the cost basis in the home to reduce capital gains tax liability potential at such time as the home might be sold. The term "tax purposes" might mean other issues or consequences not of record in this case, although it has not been proven that the contract was prepared for a fraudulent purpose. Ms. Crawley testified that the Respondent did not actually sign the document himself but that she signed it for him. What was undisputed was that there were hand-written changes made to the contract so as to include exhaust fans, ceiling fans, sun tunnels, a bathroom door and outside electrical lighting. Although there was a change to the contract for this additional scope of work, there was no increase in the amounts to be paid by Mr. Hatin for such work. After the project was commenced and the addition was partially built, Mr. Hatin and Ms. White were involved in a serious motorcycle accident. Work was stopped on the project for a period of approximately seven weeks, with Mr. Hatin's acquiescence, while Ms. White convalesced. The Respondent, during this time, dedicated all of his time to his regular job and other work commitments. It was apparently his understanding, expressed in Ms. Crawley's testimony, that, due to injuries he received in the accident and more particularly the more serious injuries received by his fiancée, that Mr. Hatin was not focused on the project at that time, but let it lapse until the medical emergency was past. After approximately seven weeks of inactivity Mr. Hatin contacted the Respondent requesting that he begin work on the project again. A meeting was set up between Mr. Hatin and the Respondent. The Respondent however, was unable to attend the meeting with Mr. Hatin that day, tried to re-schedule and a dispute arose between the two. Additionally, family disputes over money and interpersonal relationships were on- going at this time leading to a lack of communication and a further dispute between Mr. Hatin, Ms. White, the Respondent, and Ms. Crawley. A threat of physical harm was directed at the Respondent by Mr. Hatin (he threatened to put out the Respondent's "one good eye" if he came on the subject property again). Because of this, the Respondent elected not to return to the project. Inferentially, at that point the process of filing the subject complaint soon ensued.
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 Administrative Complaint filed herein be dismissed. DONE AND ENTERED this 12th day of June, 2007, 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 12th day of June, 2007. COPIES FURNISHED: Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 E. Renee Alsobrook, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Garvin B. Bowden, Esquire Gardner, Wadsworth, Duggar, Bist & Wiener, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
