The Issue The primary issue for determination in this case is whether Respondent, Bruce P. Boston, engaged in the unlicensed practice of electrical contracting in the State of Florida without being certified or registered in violation of Chapter 489, Part II of the Florida Statutes; and secondarily, if Respondent committed that violation, what penalty should be imposed?
Findings Of Fact The Department of Business and Professional Regulation (Petitioner) is a state agency charged with the duty and responsibility of regulating the practice of electrical contracting in the State of Florida. Respondent's address is 18204 Southwest 200 Street, Archer, Florida 32618. At no time material hereto was Respondent certified or registered in the State of Florida to engage in the practice of electrical contracting or to perform electrical contracting work. Mrs. Dawn Wingert is the owner of the residence located at what is currently designated as 16675 Southwest 143rd Avenue, Archer, Florida. Mrs. Wingert, as lawful owner, had the authority to enter contracts regarding the residence. The Wingert residence was previously known as 110 Park Avenue, Archer, Florida, prior to the assignment of the current address. Wingert entered into a contract with Respondent to perform construction of a carport and perform electrical contracting work at Wingert’s residence subsequent to assignment of the address of 110 Park Avenue, Archer, Florida. Respondent received compensation for the contracted work directly from Wingert via personal check, which Respondent then cashed. Terry Vargas, a licensed electrical contractor having been issued license number ER 13012448, was subsequently contacted by Respondent to perform the electrical contracting work at the Wingert residence. Vargas installed an electrical outlet on the back porch, put a flood light on the back porch, moved the switch board to a more convenient location, and put a security light in the front of Wingert’s residence. All work required electrical fixtures to be permanently affixed and become a permanent part of the structure of the Wingert residence. Although Vargas completed the electrical contracting work at the Wingert residence, Wingert paid the Respondent for the services because the work was contracted for through Respondent. At no time pertinent to this matter did Terry Vargas contract with Wingert to complete the electrical services enumerated above. After he completed the work at Wingert’s residence, Vargas invoiced Respondent for the electrical contracting work. Respondent, however, refused to pay Vargas for the electrical contracting work performed, despite having received compensation for the work from Wingert.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Petitioner enter a final order, in accordance with Section 489.533(2)(c), Florida Statutes, requiring that Respondent pay an administrative fine in the amount of $5,000.00 to the Department of Business and Professional Regulation. DONE AND ENTERED this 20th day of February, 2007, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 February, 2007. COPIES FURNISHED: Bruce P. Boston Post Office Box 331 Williston, Florida 32696 Drew F. Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 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 In this disciplinary proceeding, the issues are: Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued by Petitioner; and Whether disciplinary penalties should be imposed on Respondent if Petitioner proves one or more of the violations charged in its Amended Administrative Complaint.
Findings Of Fact Respondent, Bobby Serota ("Serota" or "Respondent"), was issued license number EC 1485 by Petitioner. He has been an electrician for over 60 years. Serota was first licensed in Florida on April 16, 1994. Serota's license expires on August 31, 2012. Approximately 10 years ago Serota opened a company, Academy Electric Inc. The company provides electrical types of installation work for commercial, industrial, and residential clients. Serota is the qualifier for Academy Electric. Inc. and the company is named on Respondent's electrical contractors' license. In January 2007, Serota answered an advertisement2 in the Sun Sentinel for an "Exp Master 5-10 yrs $30hr start+profit sharing" by submitting his resume. Rescue Me Electrician, LLC ("Rescue Me") hired Serota as a project manager employee. Rescue Me is not licensed to perform electrical contracting in the State of Florida. Serota accepted the job with Rescue Me knowing the company was not licensed to practice electrical contracting in the State of Florida. Serota accepted the position and informed the owners that he would help them establish their business in Florida. Thomas Sheats ("Sheats") is the homeowner of a residence at 14501 Old Sheridan Street ("residence"). Sheats contacted Rescue Me for a price quote to perform electrical work to fix his residence which was damaged by Hurricane Wilma. In March 2007, Renaldo Morales ("Morales"), the owner of Rescue Me, sent Serota to Sheats' residence to evaluate the cost, time and materials required to complete the job. Sheats provided Serota a rough sketch of the work. Serota informed Sheats a better set of plans was needed to fully evaluate the job because the rough sketch was incomplete, but he would provide a price based on what he thought the work involved for the residence restoration. On or about March 13, 2007, Sheats entered a Home Improvement Contract with Rescue Me for residential restoration "as per the updated 'rough' draft."3 The contract listed the parties as "Rescue Me Electrical, LLC 'DBA' Academy Electric ('Contractor') and Mr. and Mrs. Tom Sheat[s] ('Owner')."4 Serota witnessed and initialed the changes in the contract that Sheats made to the terms in the payment schedule and down payment sections. The total contract price was $15,000.00. Serota's license number EC 1485 and Rescue Me Electrician, LLC appeared at the top of the contract. Morales signed the final contract with Sheats. On or about March 14, 2007, Sheats paid Rescue Me a deposit of $7,500.00, 50 percent of the restoration project costs. Sheats gave the check to Serota. Sheats obtained and paid for all the building permits for the residential restoration. After the contract was signed, Serota made several trips back and forth to Sheats' residence attempting to get a complete set of plans and to check on the progress in order to determine when the electrical work could begin. Once the roof was closed in, Sheats allowed Serota to go in and start doing rough electrical installation. In August 2007, Rescue Me began the electrical work at the Sheats residence earlier than Sheats wanted by installing the receptacle boxes and wiring between them. Rescue Me completed approximately 25 to 35 percent of the work. However, the parties came to a standstill at some point and could not agree on how to move forward on the electrical job. On or about September 7, 2007, Rescue Me could not proceed without changes and Serota sent proposed changes by fax to Sheats, including costs and what was involved to complete the work. The fax heading included Rescue Me named as the company and Serota's license number EC 1485.5 Sheats disagreed with the proposed changes. On or about September 25, 2007, Sheats faxed Morales the following instructions: "No changes are authorized from original permit drawing and your bid. Please complete specified work in its entirety within the next 2 weeks."6 Morales and Sheats faxed back and forth regarding their differences. Serota tried to explain the different plan but Sheats refused to change very far from the original plans. Rescue Me stopped the work at the Sheats residence when it terminated Serota and paid him his last check for the week of September 13, 2007, through September 19, 2007. In October, the Rescue Me and Sheats tried to resolve their differences. On October 3, 2007, Sheats met with Rescue Me to discuss the contents of the September 7, 2007, fax. Sheats informed Rescue Me that he did not want any changes made because of the pricing and Rescue Me was to do the rough electrical as specified in the original bid. On or about October 13, 2007, Sheats sent a fax to Morales which stated: I am not paying a restart fee of any kind. I never asked you prior to our meeting on 10/3/07 to start this job. I went out of my way to accommodate you getting a "head start" in August. When you were insistent on it. I have delayed progress on the job from October 8 until October 15 to accommodate you doing another job before you started on mine. If your crew is not on the jobsite Monday 10/15/07, I shall conclude you have abandoned the job. Subsequently, I shall hire a replacement contractor and then pursue legal remedy against you for recovery of costs including the $7500 I paid you in March and attorneys fees. Tom Sheats[7] Rescue Me did not do any further work on the Sheats' residence. On October 18, 2007, Sheats paid a deposit of $5,500.00 and hired Carefree Constuction to complete the electrical work Rescue Me did not complete. Carefree Construction cashed the check on October 24, 2007. Sheats paid a second installment in the amount of $5,200.00 by check dated November 2, 2007, and the final amount of $1,000.00 on February 28, 2008, for a total of $11,700.00.8 Sheats filed a complaint with Petitioner regarding Rescue Me not completing the job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that: (a) finds Respondent guilty as charged in Count I of the Amended Administrative Complaint, imposing a notice of noncompliance and (b) finds Respondent not guilty as charged in Count II of the amended Administrative Complaint. DONE AND ENTERED this 12th day of December, 2011, in Tallahassee, Leon County, Florida. S 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 12th day of December, 2011.
The Issue The issues in this case are whether Respondents engaged in the unlicensed practice of contracting, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring general contractors. The Department headquarters are in Tallahassee, Florida. Part and parcel of the Department's duties is the sanctioning of persons who practice general contracting without a license. Morin is an individual living in Orlando, Florida. At all times relevant hereto, Morin was the registered agent and managing member of the LLC. As of the date of the final hearing, the LLC was no longer an active entity in Florida. No other members of the now-inactive LLC appeared at the final hearing. The Administrative Complaint filed by the Department makes the following allegations: Morin was not registered or certified to engage in the practice of contracting. The LLC was not registered or certified to engage in the practice of contracting. Respondents contracted with Scott Ghivizzani to construct a deck and boat dock in Lake County, Florida. Ghivizzani made a down payment to Respondent, but the deck and boat dock were never constructed. The down payment was never returned to Ghivizzani.1 The LLC is essentially a subsidiary of an entity also known as Barefoot Docks, but which operates in the state of Georgia. The Georgia entity advertises itself as a company which will construct, among other things, floating docks. At some point in time, the Georgia entity decided to create a limited liability company in Florida to handle its sales in this state. Morin, the company's primary salesman in Florida, became registered agent of the Florida entity, known and previously identified as Barefoot Docks of Florida, LLC. Morin resides in Florida and became a salesman for the LLC's products (primarily floating docks) in this state. Ghivizzani had contacted the LLC's representatives in Georgia concerning a floating dock. The Georgia representatives had referred Ghivizzani to Morin as their Florida contact. Thereafter, Ghivizzani dealt solely with Morin concerning the purchase. Ghivizzani ultimately signed a contract on June 14, 2005. The contract is entitled "Barefoot Docks Contract" and is signed by Ghivizzani. The total price of the contract was $49,500, with a deposit of $29,350 paid at the time of signing. The contract sets forth a general list of the component parts of the dock. Included in the contract was a provision in Section 5 saying, "All appropriate permitting will be handled by Barefoot Docks and no construction will begin until all permits are in effect. Owner will be charged all local and state permitting fees at final billing." The tone of the contract is a sufficient basis for Ghivizzani to believe that (1) there would be construction involved; and (2) Barefoot Docks was a licensed contractor. The contract did not, however, distinguish between the Georgia and Florida entities. The contract is not signed by the LLC or the Georgia entity. Morin does not dispute the general allegations in the Administrative Complaint except that the subject contract was between the LLC and Ghivizzani, i.e., that Morin was not individually bound by the contract. Further, Morin claims he was the agent of the LLC but did not individually contract with Ghivizzani. Also, Morin maintains that the LLC, of which he was a partial owner, merely sold Ghivizzani a prefabricated dock "kit" and agreed to assemble it for Ghivizzani, i.e., that it was not construction per se. The normal turnaround time for the LLC to put together a dock kit was about one month from the date it was ordered. In fact, another project completed by the LLC just across the lake from the Ghivizzani project took only about a month. The Ghivizzani project took six to eight months just to obtain a permit from the St. John's Water Management District. By the time this permit was issued, the LLC had essentially stopped doing business. The requisite city and/or county permits for this project were never obtained. The floating dock project necessarily required some electrical components. The electrical wiring component was not part of the original contract, but could be done at an additional cost to the owner. In that case, the LLC would have contacted an electrician to do the work. Ghivizzani's down payment was deposited by Morin into the LLC operating account. Morin at that time had access to the account as a member of the LLC and used a portion of the down payment to order component parts for the dock structure and to seek the necessary permits. Morin estimates that $9,000 to $10,000 of the deposit was used, leaving $19,000 to $20,000 of the deposit available. At some point in time, Ghivizzani decided to terminate the contract and asked Morin to return his deposit. Morin contacted the LLC's other members (who were both in Georgia) and was told that they would attempt to take money from another pending project in order to repay Ghivizzani. Morin attempted for several months to obtain the deposit as promised. After months of efforts by Morin to obtain Ghivizzani's down payment, the Georgia partners stopped returning Morin's calls. Morin realized at some point that the business had closed; at that time, there was no money in the LLC's bank accounts. None of the deposit was ever repaid to Ghivizzani. The materials and component parts of his dock were allegedly being held in the Georgia warehouse, but nothing was ever delivered to Ghivizzani. Ghivizzani had also paid the LLC to demolish an existing dock on the site. That work was done and paid for separately from the new dock purchase. Neither Morin nor the LLC has ever been licensed in the State of Florida to perform general contracting or electrical contracting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, Barefoot Docks of Florida, LLC, is guilty of the unlicensed practice of contracting. Inasmuch as the LLC is no longer active, imposition of a fine or other sanctions against it would be meaningless. However, its principals (Jim Peterson and Dennis Shaw) should be denied certification should they ever apply in this state. As for Respondent, Chad Morin, the mitigating facts support an administrative fine of $500. DONE AND ENTERED this 26th day of February, 2008, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 26th day of February, 2008.
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 The Respondent, Alfred Trujillo, is a registered electrical contractor holding license number ER 0005738. The Respondent contracted with Duncan & Sons, Inc., general contractors, to do the electrical work on the City of Tampa Museum. The total amount of this contract, to include labor and materials, was $9,900. The Respondent performed 85 to 90 percent of the work on the job and was paid for his work less a retainage of 10 percent. In order to receive partial payments on the contract, the Respondent executed notarized affidavits that he had paid for all materials utilized on the job except those materials which had come from the Respondent's inventory. Subsequently, Duncan & Sons was advised by Consolidated-Pasco Electric, Supply, Inc., that a bill in the amount of $4,118.92 for materials used by the Respondent on the job was outstanding. The Respondent was confronted by R. J. Duncan concerning the bill for the outstanding materials, and the Respondent was advised that Duncan would pay the Respondent no further money on the contract until the Consolidated bill was paid. At this point, the Respondent left the job. At the time the Respondent left the job, there remained $3,600 to be paid on the contract between Duncan & Sons and the Respondent. Duncan engaged another contractor, Randy's Electric, Inc., to finish the job. Bob Seville of Randy's Electric found that the job was between 80 and 90 percent complete and that the majority of the materials required to finish the job were at the job site. Randy's Electric only had to provide minor amounts of material to finish the job. On a labor and materials basis, Randy's Electric was paid $1,900 to finish the job. Duncan & Sons eventually paid Consolidated $4,118.92. Duncan & Sons paid this money to Consolidated in order to have Consolidated drop a pending legal action initiated by Consolidated and in order to obtain a final waiver of lien from Consolidated. (See Petitioner's Exhibit 9, letter from Duncan to Donald White.)
Recommendation Having found the Respondent guilty of violating Section 489.533(1)(a) and (g), and thereby having violated Section 455.227 (1)(a) and Section 489.533(1)(f), Florida Statutes, it is recommended that the Respondent's license be suspended for a period of one year. Having found that the allegations were not proven that the Respondent violated Section 489.533(1)(m), Florida Statutes, it is recommended that this charge be dismissed. DONE and RECOMMENDED this 10th day of April, 1984, in Tallahassee, Leon County, 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 10th day of April, 1984. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen F. Gonzales, Esquire 4105 North Himes Avenue Tampa, Florida 33607 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr., Executive Director Electrical Contractors' Licensing Board 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Sandor Koltay, Petitioner herein, is an electronic repair dealer registrant who holds registration no. 2615. William C. Kimbrel, Electronic Registration Bureau Chief since approximately April 12, 1971, is in charge of overseeing and supervising the Electronic Repair Dealer Registration Division. During early 1972, Kimbrel ordered two colored TV set which were shipped to the Miami Division Office, for use in checking repair dealer registrants who were the subject of complaints from collsumers. Joseph Hytha, an electronic inspector-investigator, working under Kimbrel for the past three years was employed by RCA for approximately 20 years in various positions of responsibility. He also was employed by Teledyne Corporation and supervised as many as 30 technicians. During his employ:nent career as an electronic repairman, he has repaired in excess of approximately 40,000 TV sets. He has been qualified as an expert in the courts of Duval and Volusia counties. Evidence reveals that the Bureau had received some complaints about the quality of workmanship engaged in by the Petitioner and working through tile assistance of the Consumer Affairs Division of Plnellas County, the Respondent used one of the referenced TV sets which was repaiied and marked and given to a citizen to be repaired by the Petitioner. The TV set was marked on the cabinet, chassis, the picture tube and the high voltage cage. Prior to being given to the citizen for repair, the set was initially checked by DivisIon employees Uytha, Stanley T. Crocker, an electronic inspector-investigator and Richard Hughes, a Division employee who is also a certified electronic technician. Crocker removed the tubes from the set and placed them in a cathode-ray tester and Hughes recorded the data with employee Hytha noting and checking all functions (State's Exhibit #3). During the examination by the Division, the filaments were closed and there was continuity in the picture tube. All tubes were marked by a nick on the number one pin for each tube removed from the set. The focus tube was removed from the set and scientifically knocked out to get a "no picture" condition. (State's Exhibit #4) initially, the set was given to Doris Dano, an employee of the Pinellas County Consumer Affairs Division, who called Petitioner to get the TV serviced. The "no picture" condition was shown to a Mr. Richards, who is also a Consumer Affairs employee, prior to the time that the Petitioner was called. John K. Kyle, a Pinellas County resident was given the set since he lived in the service area in which the Petitioner operated. When the TV set was carried to Kyle's apartment, he called the Petitioner who came and examined the set. Kyle explained to Petitioner that "he had no picutre and therefore he probably needed a new picture tube." Koltay examined the set and stated that it required a new tube after an examiniation of approximately 15 to 20 minutes. Kyle was explained his various options and after Petitioner used his phone, he was given several quotes based on estimates that Petitioner had received from two suppliers for various quality and guarantees on picture tubes. The evidence reveals that while examining the set, .the Petitioner commented that the set was dirty and called Kyle ever to the back of the set with the curtains drawn in the apartment to show him that the picture tube was not lighting up and therefore the picture tube was defective. The Petitioner was instructed by Kyle to use the better of the two picture tubes discussed and Petitioner gave him a quote of $210.00. The set was repaired for this price and it was redelivered to Kyle as agreed. Petitioner carried the set to his shop which is located at 3580- 66th Avenue North, in Pinellas Park and replaced the tube with a Grade C (used) Montgomery Ward Airline tube. Prior to installing the new tube, Petitioner testified that he tried to "spark" the tube. After conducting the "spark" test, he was certain that the tube was defective as he had suspected at Kyle's apartment. However, after he installed the new tube, the set still would net play and he checked the focus tube which was replaced. Thereafter the Petitioner made some adjustments to the set and when it was in good operating condition, he phoned Kyle and made an appointment to return the set. Petitioner admitted that he used a "1AV" tube as opposed to a "2AV2" tube inasmuch as the tubes are interchangeable and in fact some manufacturers suggest such a replacement with the original "2AV2" tube malfunctions. Later that day, Deputy Poorbaugh, who assisted in the investigation of the Petitioner beginning sometime around May 19,.1977, executed an affidavit, obtained a warrant and searched the Petitioner's shop after the set was returned to Kyle. Depuy PoorBaugh confiscated the tube which the Petitioner had removed from Kyle's set. The Petitioner had the tube marked "re-do." When questioned by Deputy Poorbaugh, Petitioner told him that he did not use a picture tube tester since his tester was inoperable, however, he had used other comparable tests and that the filament did not light up. Respecting the allegation that the Respondent charged for and applied a cleaning agent to Kyle's VHF tuner, the evidence revelas that Koltay, as a matter of practice cleans all TV tuners since the St. Petersburg area is very humid and cleaning the tuner seems to be a means of preventative maintenance which alleviates future problems. For this service, Petitioner did not charge Kyle a fee. When Deputy Poorbaugh seized the picture tube removed from Kyle's set, it was turned over to the State Attorney's office after it has been transported to the Division Office for a check. Richard Hughes, a certified electronic technician (CET) with approximately 31 years experience in the television repair field, testified that when the tube that had been removed from Kyle's set was checked, it had consistent readings of 11.9 on all three guns. (State's Exhibit #4 composite). Hughes testified that readings on new sets varied from 11.5 to 12. He estimated that based on the 20,000 to 25,000 sets of this type which he has repaired, he never witnessed an intermittent type fi1ament in a set of this type. He further testified on cross-examination that newer TV sets are not easily shaken by jostling because the elements are spot welded ridgidly in position. Sometime during the year 1976, Respondent's agent visited the Petitioner's home and demanded to inspect his invoice and other operating receipts. Petitioner refused, explaining that his wife, who maintained his books and invoices, was not at home. After an exchange of harsh words, Petitioner asked the agents to leave because he was "about to lose his temper". The following day, the Petitioner and his wife made phone calls to the Respondent's Division office in Tampa and a call was also made to the headquarters office in Tallahassee. Petitioner was advised to carry his invoices and all other operating receipts to the Tampa Office for inspection, which was done. Sandor T. Koltay, (Petitioner) has been in business at the above address for more than seven years and has approximately 15 years experience in television repair service. He has taken basic electronic courses, however, he is net a certified electronics technician. Petitioner's business phone rings at his home and he admits to the requirement that he make available to the Division all records and invoices upon request. He testified that this was done in all cases. Petitioner expressed an opinion that the State was "out to get him" based on the prior visit of Division employees Schreder and Crocker. He opined that they attempted to "shake him doqn" for approximately $3,000.00 based on six alleged violations. Sandra Koltay, Petitioner's wife, testified that she recalled the incident involving the Respondent's agents Crocker and Hytha as having occurred during the summer of 1975. She testified that the agents threatened her husband and told him that "he was in a great deal of trouble; that complaints had been received from numerous customers and that he owed six violations at $500.00 each for a total aalount of $3,000.00." She persuaded her husband to call the Bureau Chief in Tallahassee and express his desire to cooperate with the Division in any way possible. Kimbrel suggested that Petitioner carry all files for the previous six months to Tampa, for inspection. As stated, the records were carried to Tampa for inspection. Joseph W. Hytha recalled the visit to Petitioner's home during the summer of 1975 with agent Crocker. He testified that this visit was prompted by the Division's receipt of two irregular complaints and the Department's desire to discuss other matters. He testified that the invoices were illegible and inasmuch as they were at Petitioner's home, (office) they decided to carry out a regular office inspection. Mr. Hytha denied any threats having been voiced by himself or agent Crocker. Warren Quibelle, a CET with approximately 30 years in the electronic repair service business, testified that he had, during his career, worked on many RCA picture tubes such as the one in question here and that he has witnessed numerous "open" filament or intermittent problems problems existing on such tubes. BH testified that he has personally rejected TV tubes based on intermittent filaments. He testified that this is especially so in this instance inasmuch as the set was approximately five years old when it was serviced by the Petitioiier and that the average tube life span is five to seven years. Quibelle expressed doubts as to the accuracy of the 11.9 reading on a five year old picture tube. He further said that there was no way to determine whether or not an intermittent problem existed unless the problem occurs when the technician is present. Numerous witnesses testified that they had had their TV sets repaired by the Petitioner and expressed their opinion that he was reliable, honest and trustworthy. They all testified that they never voiced any complaint to the State or the Division of Consumer Affairs. (Witnesses Neal and Irving)
Conclusions Although the record reveals that there was at least a one day's delay in the Division's ability to inspect Petitioner's records - as requested, the person who was denied the inspection, Stanley Crocker, was not present and therefore it is difficult to determine on this record whether or not the request was actually made. Respecting the allegation that the Petitioner made untrue and misleading statements to John K. Kyle to the effect that he needed a new picture tube, the evidence reveals that the Petitioner, in fact, replaced the tube based on his examination which revealed that the filament in the picture tube was open. This is a problem of an intermittent type and witnesses for the Petitioner and the Respondent both testified that an intermittent problem is one which "is not apparent...and it cannot be traced. The only time such a problem can be traced is when the problem actually exists". This is the intermittent condition warranty given to Messr. Kyle and which apparently has the Respondent's imprimatur. I therefore conclude that these allegations have not been established by competent and substantial evidence nor has the allegation been substantiated that the Petitioner knowingly replaced the tube in Kyle's set when he knowingly was aware that the tube was not defective and replacement was not necessary as alleged as being violative of Chapter 468.159(1)(a) and (b), Florida Statutes. Respecting the allegation that the Petitioner charged for and applied a cleaning agent to Kyle's VHP tuner, the evidence reveals that no charge was made for the tuner cleaning repair. (State's Exhibit #5) Respecting the allegation that the Petitioner presented to John K. Kyle an illegible invoice ill violation of Rules and Regulations 7E-2.10, the evidence reveals that although Petitioner's handwriting leaves something to be desired, the undersigned can read such and therefore I cannot conclude that it is illegible in violation of Rule and Regulation 7B-2.10 of the Department's rules. The undersigned was unable to find any requirement in Florida Statute 468.155 to the effect that the Petitioner was required to notify the Division of a change of home address on or about June 1, 1976, as alleged in paragraph seven of the amended notice to show cause filed herein. It was further noted that Petitioner's registration has his business address denoted thereon and was available there at all times. Finally, I conclude that Petitioner, in fact, installed a Montgomery Ward- Airline brand picture tube in Kyle's TV set as alleged in paragraph six of the amended notice to show cause filed herein. The remaining allegations in paragraph six are rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Petitioner be assessed a civil penalty of $250.00 based on the violation found above. In all other respects I hereby recommend that the allegations contained in the amended notice to show cause filed herein be dismissed. RECOMMENDED this 1st day of December, 1977, Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 Charles H. Scully, Esquire 445-31st Street, North Suite 204 St. Petersburg, Florida 33713 Charles E. H. Beck, Esquire 3806 Central Avenue St. Petersburg, Florida 33711 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF BUSINESS REGULATION DIVISION OF GENERAL REGULATION STATE OF FLORIDA SANDOR KOLTAY t/a/ CITY TV, Petitioner, vs. CASE NO. 77-1531 STATE OF FLORIDA, DIVISION OF GENERAL REGULATION, Respondent. /
Findings Of Fact Johnson Controls, Inc., Petitioner, is a foreign corporation licensed to do business in Florida. It maintains offices in Jacksonville, Tampa, and Miami, employs sixty to eighty employees in this state and conducts business throughout Florida. It holds licenses in twenty-three separate Florida counties and municipalities. Petitioner is a multi-million dollar corporation licensed to do business in forty-nine of the fifty states. It engages in the business of manufacturing electrical components and constructing, installing, and servicing electrical control systems and other phases of electrical contracting work. On November 16, 1978, Petitioner filed with the Florida Electrical Contractors' Licensing Board (Board or Respondent) its application for licensure naming Wilfred Allen Infinger as qualifying agent. Winfred Allen Infinger holds a B.E. degree in technology and construction and a journeyman's electrician license in Pinellas County. He has experience in all phases of electrical contracting work and is fully qualified to serve as qualifying agent of Johnson Controls. On December 5, 1978, the Board returned the application requesting additional information relating to Johnson Control's financial statement and credit standing. On June 29, 1979, Johnson Controls refiled its application including additional financial information. On March 14, 1979, the Board advised Petitioners that the application would be reviewed by the application committee, thereby acknowledging receipt of a complete application. By letter of 8 May 1978, the Board advised applicants that it found in the application insufficient evidence to qualify Johnson Controls to sit for the examination because: Your application failed to meet the qualifications 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 a licensure of specialty contractors. Thereafter this petition and the petition in Case 79-1145R were filed. Johnson Controls' primary interest in the electrical contracting field involves wiring for temperature and humidity controls, communications and protective systems, and maintenance and repair of these systems. During the period from December 1976 to September 1978, included in Petitioner's application showing type of work performed, twenty-six contracts were listed varying from $5,000 to $300,000 in which Johnson Controls was subcontractor. Although not apparent on the face of the application, most of these subcontracts involved the installation of temperature control equipment and various low-voltage control equipment for life safety systems such as fire alarms and smoke detectors, security, and energy consumption. In the construction and installation of control systems, Johnson Controls performs design work, wires control systems by connecting the various components, installs sensors, motors, conduit, raceways, panels, switches, circuit breakers and power wiring. Although Johnson Controls normally works on voltage no higher than the 440 volt range, it has performed work on high voltage systems in excess of 13,000 volts. In addition, it has wired entire buildings, both industrial and residential, including phase balancing of the circuits. Control wiring is generally considered more complicated, therefore requiring a higher degree of skill, than most residential wiring. Commencing in 1973, Johnson Controls has filed five applications for licensure, including the present application, and all have been denied by the Board. Although the Board denied Johnson Controls' latest application on the grounds that the work it performs was not "unlimited", at the same time the applications of Brown and Root, Inc. and Bechtel Power Corporation were approved. Both of the latter companies are large international contractors whose only work in Florida involves electrical power plant installations. Holding local licenses allows Petitioners to enter into any electrical contract for the area in which licensed. However, if Petitioner is called upon to bid on work in an area in which it is not licensed, it must rely upon a local electrical contractor to perform the work. If the applied for license was granted, Petitioner would be able to bid and work statewide and could also cease paying annual renewal fees for the twenty-three local licenses it now holds. Johnson Controls is financially capable of performing unlimited services in the electrical field. Winfred A. Infinger is qualified by training and experience to serve as qualifying agent for a Florida electrical contractor.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact In response to petitioner's first request for admissions, respondent conceded that he has been licensed at all pertinent times as a registered general contractor, and that he now holds license No. RG 0016059. New Veep At one time, Alachua County building officials allowed Donald Russell, who owns Gator Aluminum, Inc. and serves as its president, to secure building permits for aluminum carport roofs and similar jobs that Gator Aluminum, Inc. performed in the county. Mr. Russell holds an aluminum specialty contractor's license. After June 5, 1986, however, the Alachua County authorities no longer allowed Mr. Russell's license to qualify his company for this work. As a result of this change, Mr. Russell sought out respondent Bruce Kirby, whom he had known for some 15 years. Mr. Kirby had spent "20 years around the aluminum business," but he worked for the University of Florida as a refrigerator mechanic at the time. Mr. Kirby became vice-president of Gator Aluminum, Inc., while continuing his employment with the University. He agreed to work for the company by reviewing applications for building permits; alerting Mr. Russell or Bob Baxter, another Gator Aluminum, Inc. employee, to any problems he saw with the plans; applying or authorizing his wife to apply and secure a building permit; and by looking over the work after it was done, before calling for inspection by a building official. For these services he was paid $50 to $100 for each job. Remodeling On March 12, 1987, Arthur and Doris Jones signed a contract with Gator Aluminum, Inc. to pour a concrete slab, install a carport roof, hang awnings, cover the roof of the main house with aluminum, and do miscellaneous other work at the Jones' residence in Archer, which is in Alachua County. Petitioner's Exhibit No. 1. Work began a week later. No building permit was posted before the concrete was poured, and none was obtained until April 6, 1987, five days after Bruce Kirby's wife applied for the permit on his behalf. Petitioner's Exhibit No. 2. Pouring the concrete slab before posting a building permit did not violate the building code, which requires no permit for such work. Only after the permit was posted did aluminum work begin. On May 11, 1987, construction completed, the Jones paid the balance due under the contract. Dry Clothes Wet Mrs. Jones was folding clothes in the new carport on May 18, 1987, when it began raining. Her husband had hardly finished remarking on the fact that none of the rainwater collecting on the carport roof was flowing through the downspouts when the roof creaked, then buckled, spilling gallons of water and damaging vehicles, lawn chairs and clay pots. Mrs. Jones escaped unscathed, but part of the roof hit Mr. Jones a glancing blow on the shoulder. The rain on the 18th was the first that anybody recalled since the carport's completion a week earlier. Experts agreed that the weight of the rainwater brought the roof down; water weighs eight pounds a gallon. But the evidence did not show why such a quantity of water accumulated on the roof. Perhaps the roof was installed without the requisite pitch, although a preponderance of the credible evidence put the vertical drop at nearly a half inch for every horizontal foot, which should have been sufficient. Debris left by workmen may have clogged the drains. No trees stood nearby. In the collapse, the carport roof pulled away from the fascia board to which it had been attached. In keeping with industry standards, the workmen had used three-inch screws in the rafter tails and three one-inch screws per pan elsewhere along the fascia board. The fascia board itself was old and riddled with dry rot, which careful inspection might have revealed, but the significance of this is unclear. Apparently, the three-inch screws pulled out of the rafters, which were sound. When Mr. Russell heard what had happened, he came promptly, and offered to replace the roof. Mr. and Mrs. Jones turned him down, however, and instructed him and all other employees of Gator Aluminum, Inc. to stay off the premises. Eventually, Gator Aluminum's insurer paid to replace the roof and for the damages the collapse had occasioned. Inspection and Supervision In the spring of 1987, Mr. Kirby's father-in-law was dying of leukemia up the country, and his own mother, who also lived out of state, had a heart attack. Even when he was in town, moreover, he was not accustomed to look over the work Gator Aluminum, Inc., performed under the authority of permits he obtained until aluminum mechanics, many of whom he had known for several years and in all of whom he had confidence, had finished the project. At no time before the roof collapsed had respondent Bruce Kirby ever set foot on the Jones job site. He never talked to Mr. Russell or anybody else about the job while it was in progress. Whether this lack of supervision contributed to the untimely demise of the carport roof was not clear from the evidence. In Mr. Kirby's experience and in the industry generally, a delay of a week or even much longer between completion of a job and the contractor's call for final inspection is not uncommon. Many jobs, including the job Gator Aluminum, Inc. undertook for the Jones, require only a final inspection. Nobody told Mr. Kirby that work at the Jones' house had finished. After Mr. and Mrs. Jones barred Gator Aluminum, Inc.'s employees from the premises, Mr. Kirby was no longer in a position to inspect the work to determine whether the job met building code requirements. He never called for a final inspection by the building official, although Mr. Russell asked that the roof be inspected, in December of 1987.
