Findings Of Fact At all times relevant thereto, respondent, Benjamin R. Newbold, Jr., held registered electrical contractor license number ER 0001170 issued by petitioner, Department of Professional Regulation, Florida Electrical Contractors Licensing Board. He was granted registration in September, 1974 after evidencing competency in Metropolitan Dade County. His present address is Route 3, Box 839, Silver Springs, Florida. He also holds a registered electrical contractor's license with the City of Ocala and, as such, is authorized to pull permits and perform electrical work within that city. At all times relevant thereto, respondent, Edward I. Hammond, held registered electrical contractor license number ER 0003860 issued by petitioner. Hammond was granted registration in September, 1975 after evidencing competency in Marion County, Florida. However, Hammond is not qualified to perform electrical work within the City of Ocala since he had not obtained the required certificate of competency. His present address is 2529 Northeast 6th Street, Ocala, Florida. Section 2.63 of the Ocala City Code provides in part that "no person shall engage in said businesses or occupations (of a contractor) in the city until such person shall have first stood a satisfactory examination before the examining board as to his qualifications and fitness to engage in such occupation or business." On or about March 22, 1983, Drake Contracting Company, a construction firm in Oca1a, Florida, entered into a contract with H & H Electrical Contractor Company (H & H), an electrical firm in Silver Springs, Florida, wherein H & H would perform the electrical work on a construction project for Caviness Buick, 2060 Southwest College Road, Ocala, Florida. The agreed-upon price was $42,113. Hammond was the owner of H & H. In order to perform the work required in the above contract, it was necessary that the person doing the work be certified by the City of Ocala. On April 7, 1983, Newbold filed an application for an electrical permit with the City of Ocala to perform the work on the Caviness Buick project. The application did not reflect that H & H was associated in any respect with the job. Thereafter, on April 13, the City code enforcement officer learned through a telephonic complaint that H & H had no certificate of competency. On April 19, the officer contacted Hammond on the job site to advise him that H & H was in violation of the City code and that he could not perform the job. After being told their endeavors were illegal, respondents entered into a written "joint venture" on April 21, 1983, and agreed to work jointly on the Caviness Buick project and split the profits, if any. Newbold was to be in charge of supervising the employees on the job. Newbold had qualified for a certificate of competency with the City in 1978. Using that certificate, he filed an application for contractor's certificate with the City on May 4, 1983 seeking to qualify H & H. This application was apparently granted by the City shortly thereafter. From that point on, H & H was qualified to contract electrical work within the City. Respondents contended that an informal agreement between the two existed prior to obtaining the contract to do the job and that it was formalized in writing after the City made its complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent Newbold be found guilty of violating Subsections 489.533(1)(k), Florida Statutes, and that a $100 fine be imposed for such conduct, the fine to be paid within thirty (30) days from date of final order in this cause. It is further RECOMMENDED that respondent Hammond be found guilty of violating Subsection 489.513(4), Florida Statutes, and that a $200 fine be imposed for such conduct, the fine to be paid within thirty (30) days from date of final order in this cause. DONE and ORDERED this 8th day of November, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1983. COPIES FURNISHED: Charles Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. Benjamin R. Newbold, Jr. Route 3, Box 830 Silver Springs, Florida 32688 Mr. Edward I. Hammond 2529 Northeast 6th Street Ocala, Florida 32670 Mr. Alan R. Smith Executive Director Florida Electrical Contractors Licensing Board 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to licensure as a certified contractor pursuant to the "grandfathering" provisions of section 489.514, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner held a Registered Electrical Contractors license, No. 13012890, and a Registered Alarm System Contractors I license, No. 12000229, that authorized him to engage in the same in Broward County, Florida. Petitioner's licenses are active and in good standing; he has not been the subject of any complaints filed with, or discipline imposed by, the local licensing authority. Petitioner operates a business named "D" Electrician Technical Services, Inc., in Pompano Beach, Florida. In the case styled State v. Terrance Davis, Case No. 082026CCFICA, in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Petitioner was charged with burglary of a structure with assault or battery and felony battery. Petitioner's unrefuted testimony was that after his arrest in October 2008, he was detained without bond pending his trial.1/ On November 17, 2009, the Florida Department of Revenue ("DOR") issued to Petitioner a Notice of Non-Compliance with Support Order and Intent to Suspend License for the nonpayment of a previously existing child support order. The notice was sent to 7906 Southwest Seventh Place, North Lauderdale, Florida 33068. At the time the notice was sent, Petitioner claims to have been detained in the Broward County jail. The criminal charge of felony battery was nol prossed on December 14, 2009. On December 15, 2009, Petitioner proceeded to trial on the remaining charge and was acquitted by a jury. On December 27, 2009, DOR issued a Notice to Suspend License for Nonpayment of Support to the Division of Professions. Said notice provided that, "[w]e gave [Petitioner] notice of nonpayment and intent to suspend license(s) more than 30 days ago. [He has] not complied with the support order, a written agreement if there is one, or timely contested the action." The notice further directed that, "[u]nder section 409.2598(5)(b), Florida Statutes, you must suspend the license, permit or certificate that allows the person to engage in an occupation, business or recreation." In January 2010, during the course of a traffic stop, Petitioner was advised by a law enforcement officer that his Florida driver's license was suspended. On February 8, 2010, Petitioner entered into a Written Agreement for Past Due Support with DOR wherein he agreed to make a lump-sum payment and additional monthly payments. DOR agreed that it would not suspend or deny his driver's license as long as Petitioner complied with the terms of the agreement. Petitioner credibly testified that thereafter, when he "resumed his Articles of Incorporation," he realized his professional licenses had also been suspended. On February 25, 2010, DOR issued a Request to Reinstate License to the Division of Professions. Said request provided as follows: The license(s) of the parent named below, was suspended for nonpayment of support. Please reinstate the license(s). The parent is paying as agreed or ordered, the circuit court has ordered reinstatement, or the parent is otherwise entitled to have the license(s) reinstated under section 409.2598(4)(b), Florida Statutes. Court Case Number: 060015893CA-06 Parent's Name: TERRENCE A DAVIS Mailing Address: 7905 SW 7th Pl, North Lauderdale, FL 33068-2123 License Number(s) and Type(s): 12000229 Reg. Alarm System Contractors I (EY), 13012890 Reg. Electrical Contractors (ER) On or about July 23, 2013, Petitioner applied for certification as an electrical contractor pursuant to the "grandfathering" provisions of section 484.514, Florida Statutes.2/ Included with Petitioner's application, was a personal financial statement wherein Petitioner itemized his assets and liabilities. Petitioner's personal financial statement concluded that his personal net worth was $56,400.00. Also included in Petitioner's application was a business financial statement for "D" Electrician Technical Services, Inc., that similarly itemized Petitioner's business assets and liabilities. Petitioner's business financial statement concluded that the business's net worth was $35,945. By a Notice of Intent to Deny, dated October 18, 2013, the Board denied Petitioner's application for two reasons: within the previous five years, Petitioner's contracting license was suspended for failure to pay child support; and Petitioner's application failed to demonstrate that he had the requisite financial stability as required by rule 61G6- 5.005(3) and requisite net worth as required by rule 61G6-5.004. Petitioner credibly testified as to the figures supporting the itemization of both his personal and business assets and liabilities and respective net worth contained in the application. Petitioner conceded that a credit report, dated July 8, 2013, documents that he had a late mortgage payment in April 2010; that in 1997, his child support arrearage was placed in collection; and that an account, with a current balance of $3110.00, was placed for collection. Petitioner contends said account concerned a one-year lease that he was unable to satisfy at the time due to his detainment for the above-noted criminal charges. Respondent presented the testimony of Clarence Kelly Tibbs. Mr. Tibbs is a state-certified electrical contractor who served on the Board for approximately 13 years. Mr. Tibbs was not on the Board at the time the Board considered and rejected Petitioner's application. The undersigned deemed Mr. Tibbs as an expert in electrical contracting. Mr. Tibbs did not testify concerning the areas of his expertise (electrical contracting), but rather, offered opinions on the propriety of the Board's denial of Petitioner's application. Mr. Tibbs testified that, "as an ex-Board member," looking at Petitioner's personal and business financials, there were several problems. After itemizing his concerns, Mr. Tibbs concluded that, "[h]owever, looking at the financials that you've got in front of me, although I have some problems with them, I could probably go ahead and approve them."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Business and Professional Regulation, Electrical Contractor's Licensing Board, enter a final order denying Petitioner's application for licensure as a certified electrical contractor. DONE AND ENTERED this 7th day of May, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 2014.
The Issue Whether Respondent's, Florida Department of Transportation ("the Department"), decision to award a contract to Intervenor, DBi Services, Inc. ("DBi" or "Intervenor"), pursuant to the Bid Solicitation Notice and the Specifications Package (jointly referred to as "Solicitation") for Contract No. E5X18 (highway lighting maintenance in District Five), was contrary to its governing statutes, rules, or policies, or the solicitation specifications; and, if so, whether the award was contrary to competition, clearly erroneous, arbitrary, or capricious.
Findings Of Fact The Parties The Department is an executive agency of the state of Florida responsible for coordinating the planning of a safe, viable, and balanced state transportation system, serving all regions of Florida. § 334.044(1), Fla. Stat. The Department is tasked with providing a statewide transportation system that ensures the mobility of people and goods, enhances economic prosperity, and preserves the quality of Florida's environment and communities. § 334.046(2), Fla. Stat. To that end, the Department has authority to enter into contracts for the construction and maintenance of all roads under its jurisdiction. § 337.11(1), Fla. Stat. DBi is a transportation infrastructure asset operations and maintenance contractor that provides services primarily to owners of highway infrastructure, such as the Department, across the country. Most of the contracts DBi enters are performance-based contracts. DBi has performed more than 20 maintenance contracts for the Department. ALS is a certified electrical contractor specializing in highway lighting maintenance, roadway lighting, and traffic signalization, which previously performed work for the Department through DBi as its subcontractor on multiple occasions. The Solicitation On February 23, 2021, the Department issued a Solicitation for the performance of highway lighting maintenance work in District Five. District Five comprises Brevard, Flagler, Lake, Marion, Orange, Osceola, Seminole, Sumter, and Volusia counties. The Solicitation provided that "[t]he work under this Contract consists of maintaining the highway lighting system, including overhead, underdeck and sign lighting, at various locations throughout District Five." The Solicitation included two documents: (a) a Bid Solicitation Notice and (b) a Specifications Package containing Special Provisions that are specific to Contract No. E5X18. By its own terms, the Specifications Package replaced or added to specifications contained in the Department's Standard Specifications for Road and Bridge Construction, January 2021 edition. To the extent not modified by the Specifications Package, the definitions supplied in the Standard Specifications apply to terms used in the Specifications Package. The January 2021 Standard Specifications for Road and Bridge Construction define "bidder" as an individual, firm, or corporation submitting a proposal for the proposed work. It also separately defines "contractor" as the individual, firm, joint venture, or company contracting with the Department to perform the work. These definitions applied to the procurement of Contract No. E5X18. The Solicitation described the contract as a lump-sum "performance" contract or performance-based contract. This means that the Department will pay the winning contractor a fixed monthly price for maintaining certain performance levels. The goal of a performance contract is to achieve an ultimate result: to maintain a level of service as defined within the specifications and scope of the contract—here, the Department's highway lighting system throughout District Five. If the contractor satisfies its contractual obligations—whether by self-performing the work or by subcontracting the work—the contractor is paid on a lump-sum basis. With a performance contract, the Department does not know whether any of the work is subcontracted or whether the contractor self-performs the work. With a performance maintenance contract, the Department's Special Provisions typically do not require bidders to submit proof of licensure with their bids. It is up to the contractor, after contract execution, to conduct field assessments, to determine work needs, to determine what activities need to be performed, and whether any licensure is required to perform those activities. Performance contracts are distinguished from "task" or "work- directed" contracts, in which the Department, itself, identifies the work needs and issues work orders, or task orders, directing the contractor to furnish specific quantities for specific locations. With the Department's work-directed contracts, the Special Provisions generally require proof of licensure at bid time. The Bid Solicitation Notice contained the following requirement(s): EXPERTISE REQUIRED: For this Contract, the Contractor is required to have at least three years of experience in the performance of Highway Lighting, or the Project Superintendent must have at least three years of like experience as a Superintendent. A Contractor that presently has a certificate of prequalification with the Department in both "Underground Utilities (Electric)" and Traffic Signal" will suffice to meet the above requirements. The Solicitation included a form titled "Experience in Highway Lighting" ("Experience Form"), by which a bidder could demonstrate compliance with the Solicitation's expertise requirement. The Experience Form contained blank spaces in which a bidder was to list qualifying projects, as well as a space a bidder could mark with an "X" to indicate that it is prequalified with the Department in both Underground Utilities (Electric) and Traffic Signal, depending on how the bidder elected to meet the Solicitation's expertise requirement. To be eligible to bid on Contract No. E5X18, bidders were required to have either three years' experience in highway lighting or possess a certificate of prequalification with the Department in both Underground Utilities (Electric) and Traffic Signal. The Solicitation left it up to the bidder which method would be used. One of the special provisions in the Specifications Package, under the heading "Contractor Responsibility," was a modification of Article 715-2.1 of the Standard Specifications, which was deleted and replaced with the following: A license to do business as a certified or registered electrical contractor pursuant to Chapter 489, Part II, Florida Statutes is required. Provide a journeyman electrician possessing a valid journeyman electrician's license to supervise all work, Provide copies of all licenses, certificates, and registrations to document compliance with this Article upon request by the Engineer. The Specifications Package also provided in Article 8-1, titled "Subletting or Assigning of Contracts," that the "Contractor" may "sublet," or subcontract, the contract work. Article 8-1 provided that to subcontract any work, the Contractor must submit a written request to the Department's Engineer. This provision further stated that such a request is approved by default unless the Engineer notifies the Contractor within five business days of receipt of the request that the Department does not consent to the request. The Solicitation further stated that the Department's Proposal Budget Estimate for the contract was $476,000.00. No timely challenge to the Solicitation specifications was ever filed. The Parties' Submissions and the Intended Award On or before the March 25, 2021, due date, DBi and ALS submitted bids to the Department in response to the Solicitation. DBi's bid total was $547,308.00. DBi attested to having the requisite experience, listing three Department highway lighting contracts on which it served as prime contractor, spanning from July 2014 to June 2020. DBi also indicated that it was prequalified with the Department in both Underground Utilities (Electric) and Traffic Signal. Jeffrey Schechtman, DBi's Chief Operating Officer, testified that this indication of being prequalified was made in error, but that DBi nonetheless provided the information in the experience section which met the expertise requirement. ALS' bid total was $799,200.00. ALS also attested to having the requisite experience, claiming prequalification with the Department in both Underground Utilities (Electric) and Traffic Signal. Although it is undisputed that ALS has many years of experience in highway lighting, ALS chose not to list any qualifying projects, and instead relied solely on its prequalification for its bid proposal. On March 25, 2021, the Department issued the Vendor Ranking for the Solicitation, which indicated that DBi was responsive and had submitted the lowest bid, and the Technical Review Committee recommended the Department award Contract No. E5X18 to DBi. On April 1, 2021, the Contract Awards Committee indicated an intent to award Contract No. E5X18 to DBi. On April 6, 2021, ALS filed, with the Department, its notice of intent to protest and, on April 14, its Petition. ALS filed an Amended Petition on June 11, 2021. The Protest ALS contends that both the Solicitation and section 489, part II, Florida Statutes, required each bidder to hold an electrical contracting license, issued by the Florida Department of Business and Professional Regulation, at the time of bid submission. According to ALS, because DBi lacks such a license, DBi is nonresponsive and nonresponsible, and the Department's intended award to DBi is clearly erroneous, contrary to competition, arbitrary, or capricious. Additionally, ALS contends that DBi does not have the highway lighting expertise required by the Solicitation. DBi and the Department Responses DBi admits that it did not have an electrical contractor license at the time of bid submission and does not have a certificate of prequalification. However, both DBi and the Department assert that neither the Solicitation nor chapter 489, part II, require it. Rather, the license requirement is not for the bidder, but for the contractor (the entity that is successfully awarded the project) and can be satisfied by using the services of a licensed subcontractor. Further, DBi asserts that it properly listed three highway lighting projects which it supervised, thereby demonstrating the requisite experience. Both DBi and the Department question ALS' standing to bring this protest because, although ALS indicated it holds prequalification in both Underground Utilities (Electric) and Traffic Signal, ALS does not possess prequalification for Underground Utilities. To the extent ALS argues the Solicitation, by its scope of work, necessitates that a bidder has a license in electrical contracting, ALS is attempting to litigate an untimely specifications challenge. The License Requirement ALS contends "the entirety of the work [under Contract No. E5X18] constitutes electrical contracting for which an electrical contracting license is absolutely required." Amended Petition, ¶ 45. According to ALS, the requirement is set forth both expressly in the Solicitation and by the nature of the work described therein. ALS points to Article 715-2.1 of the Specifications Package, entitled "Contractor Responsibility": "A license to do business as a certified or registered electrical contractor pursuant to Chapter 489, Part II, Florida Statutes is required." Chapter 489, part II, governs electrical contracting. Under the statute, only certified or registered electrical contractors are permitted to perform electrical contracting in Florida. § 489.516(2), Fla. Stat. ("No person who is not certified or registered shall engage in the business of contracting in this state."). DBi and the Department stipulated on the record that most of the work described in the Specifications Package is electrical contracting work that requires an electrical contractor's license under chapter 489, part II. ALS expert, Curtis Falany, testified to the same. Mr. Falany conceded that under chapter 489, part II, work requiring an electrical contracting license begins the first time a worker approaches an electrically energized device and begins to manipulate it. Mr. Falany further admitted it is possible that, after Contract No. E5X18 is executed, a month could elapse without any such work needing to be performed. DBi does not dispute that work requiring electrical contracting licensure will likely arise under Contract No. E5X18, but contends that, in this performance maintenance contract, exactly what work will be performed is entirely speculative at this point. Further, while ALS refers to the Specifications Package as the contract's "scope of work," DBi asserts that the Specifications Package is a set of specifications that would apply to work that may need to be performed under the contract. Although ALS' argument, that intended electrical contracting work must be awarded to a licensed contractor, makes common sense, it ignores the explicit language of the Specifications and the reality of a performance- based maintenance contract. The only reference in the Specifications to a license requirement is under the heading "Contractor Responsibility," not "Bidder Responsibility." In fact, when the Department intends to require the bidder to have the electrical license, it is quite capable of asking for proof of the same at the time of the bid submission. For example, the Department entered into evidence the solicitation for a District Seven highway lighting maintenance contract that ALS was recently awarded, Contract No. E7N92, in which the solicitation expressly provides bidders "must possess and submit with their bid a license to do business as a Certified or Registered Electrical Contractor pursuant to Chapter 489, Part II, Florida Statutes." The Solicitation here contains no such provision. Likewise, the "Experience in Highway Lighting" form bidders were required to submit with their bids did not mention licensure. ALS contends DBi may not subcontract electrical work to a licensed electrical contractor. However, this ignores Article 8-1 of the Specifications, entitled, "Subletting or Assigning of Contracts," which states that the "Contractor" may "sublet," or subcontract, the contract work. The Department's witnesses testified that this means the contractor may subcontract up to 100 percent of the contract work. There is no provision in the Solicitation directing bidders to identify their subcontractors when submitting their bids. Indeed, with performance-based contracts, the Department typically does not ever learn whether any of the work is subcontracted or whether the work is self-performed. The competent, substantial evidence showed that not all work that might be performed under Contract No. E5X18 directly involves electrical work. For example, maintenance of traffic (referred to as "MOT"), tree trimming, and the general assessment of what work is needed typically do not involve installing, repairing, altering, adding to, or designing electrical wiring, fixtures, appliances, apparatus, raceways, conduit, or any part thereof that generates, transmits, transforms, or utilizes electrical energy in any form. See § 489.505(12), Fla. Stat. Consequently, the undersigned finds that Contract No. E5X18 is not an electrical contract per se, but rather is a performance maintenance contract that—like a broader, general performance maintenance contract— should eventually involve electrical work that requires electrical contracting licensure. The undersigned also finds that, while such work is likely to occur, whether and when it will is entirely speculative. Accordingly, only requiring the actual contractor (either on its own or through a subcontractor) instead of the bidder to possess an electrical contractor's license at the time of work, is the only logical interpretation of the Solicitation language. The Experience Requirement As discussed above, the Solicitation instructed each bidder to demonstrate, using one of two methods, the expertise that qualifies it to perform the contract. Bidders could describe "at least three years of experience in the performance of Highway Lighting" or show that they were prequalified by the Department in two specified work classes. On the "Experience in Highway Lighting" form each bidder was required to submit, DBi listed three contracts, all performance-based contracts with the Department's District Five, and all active contracts when bids for Contract No. E5X18 were submitted. In the space to describe the "Type of Work Performed," DBi stated, "Asset Maintenance/Highway Lighting." In the space to specify "Prime or Sub," DBi stated, "Prime."1 ALS contends DBi lacks the required expertise in two ways: (1) DBi did not self-perform the electrical work on those contracts but instead subcontracted the work; and (2) those contracts were "asset maintenance" 1 DBi also checked the “prequalified” box, but its Chief Operating Officer testified that this was an error. contracts, not "highway lighting maintenance" contracts. DBi readily admits that ALS performed some of the electrical work as a subcontractor on each contract listed and contends that DBi's position as prime contractor on all three contracts renders the work it subcontracted DBi's experience for purposes of the Solicitation. That the contracts DBi listed were general asset maintenance contracts instead of, specifically, lighting maintenance contracts, does not matter here. The Solicitation expressly refers to Contract No. E5X18 as a "Maintenance Performance Contract" and lists as the sole work item "Highway Lighting Maintenance." The Department considers highway lighting to be an asset of the Department, which is consistent with calling Contract No. E5X18 a maintenance contract. Further, Ms. Hutchison, the State Administrator for Maintenance Contracting, testified, although some of the Department's asset maintenance contracts are broad in scope and cover all work in a geographic area, that is not always the case; sometimes an asset maintenance contract is specific to only one type of work. The Solicitation provided that a bidder could demonstrate expertise by showing it had "at least three years of experience in the performance of Highway Lighting." The Solicitation does not state that experience must be direct- or self-performed or that the bidder may not include experience of subcontractors. From the Department's and DBi's perspectives, DBi "performed" those contracts—including the electrical work—within the meaning of the Solicitation's expertise provision. DBi is the one that contracted with the Department and is responsible to ensure all work under the contracts is timely completed in accordance with the contracts' terms. DBi is the one that invoiced the Department and the one the Department has paid and pays for all work under the contracts. And because, like the contract at issue here, these contracts are performance contracts, DBi was and is the one responsible for determining what work needs to be performed and how. DBi does not simply oversee others' performance of work items determined to be necessary by the Department, as occurs with a work-item contract. That certain work was performed by subcontractors does not negate that DBi successfully completed the contracts. The Department's practice, when procuring performance-based contracts, of treating a prime contractor's experience to include the experience of subcontractors is rational, reasonable, and justifiable. Accordingly, DBi met the experience requirement of the Solicitation. In contrast, ALS did not meet the experience requirement. ALS did not list three years' experience in highway lighting work, instead choosing to demonstrate expertise solely through its Department-issued prequalification. ALS submitted a copy of its current Certificate of Qualification and checked the "prequalified" box on the Experience in Highway Lighting form, representing that it held both Underground Utilities (Electric) and Traffic Signal prequalification. However, ALS' Certificate of Qualification reflects that ALS is prequalified in the work classes Traffic Signal and Electrical Work, but not Underground Utilities (Electric). ALS attempted to show, through the testimony of its Region Manager Richard Calledare, that Electrical Work is a "major" work class and Underground Utilities (Electric) is a "minor" work class subsumed within the umbrella of Electrical Work and that, therefore, ALS was effectively prequalified in both work classes. In support, Mr. Calledare suggested that the undersigned should "check the [Department's] website." However the website was not introduced into evidence and constitutes uncorroborated hearsay which cannot support a finding of fact. ALS presented no competent, substantial evidence supporting this argument—no evidence as to what major and minor work classes are and no evidence that the Electrical Work work class encompasses Underground Utilities (Electric). Further, the only evidence ALS presented was testimony from Mr. Calledare, yet there was no evidence Mr. Calledare was ever employed by the Department or had any specialized knowledge or other qualification that would render his perspective on this issue competent and substantial evidence sufficient to support a finding that ALS' prequalification in Electrical Work sufficed to meet the Underground Utilities (Electric) requirement. In contrast, the Department presented competent, substantial evidence showing that ALS' argument fails. As Mr. Calledare conceded, the Solicitation's plain language makes no mention of the work class Electrical Work. The Department's current list of qualified contractors shows that multiple contractors are prequalified in both these classes, demonstrating that a contractor can be prequalified in Electrical Work without being prequalified in Underground Utilities (Electric) and reflecting that being prequalified in Electrical Work is not the same as being prequalified in Underground Utilities (Electric). Deanna Hutchison, a Department State Administrator for Maintenance Contracting, testified that Underground Utilities (Electric) and Electrical Work are separate, mutually exclusive classifications and that Electrical Work is not inclusive of Underground Utilities (Electric). ALS' failure to hold a Department-issued prequalification in Underground Utilities (Electric), as well as Traffic Signal, and failure to demonstrate the required expertise by any other means, rendered ALS' bid nonresponsive.2
Conclusions For Petitioner: Karen D. Walker, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 James Keith Ramsey, Esquire Ben W. Subin, Esquire Holland & Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 For Respondent: Sean W. Gellis, General Counsel George Spears Reynolds, Esquire Douglas Dell Dolan, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 For Intervenor: Megan S. Reynolds, Esquire William Robert Vezina, III, Esquire Vezina Lawrence & Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the protest filed by American Lighting and Signalization, LLC, should be dismissed, and the Department of Transportation should enter a final order awarding Contract No. E5X18 to DBi. DONE AND ENTERED this 27th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2021. Douglas Dell Dolan, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Ben W. Subin, Esquire Holland & Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 Karen D. Walker, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 William Robert Vezina, III, Esquire Vezina, Lawrence and Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 George Spears Reynolds, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Amber Greene, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Megan S. Reynolds, Esquire Vezina, Lawrence & Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 Sean W. Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 James Keith Ramsey, Esquire Holland & Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
Findings Of Fact Prior to September 12, 1991, Verda Dupuy, manager of administrative services for the Newtron Group, contacted the Florida Electrical Contractors Licensing Board to obtain information needed to apply for licensure as a statewide electrical contractor on behalf of Phillip Ray Fife, Petitioner. Fife is employed by TRIAD Electric, a wholly owned subsidiary of Newtron Group. Both of these companies are out-of-state corporations which perform electrical contracting services in the United States. Newtron Group has annual revenues of some $80 million dollars and TRIAD has annual revenues of some $30 million dollars. An application packet was provided pursuant to this request and on September 12, 1991 Fife applied to the Board for licensure as an unlimited electrical contractor. The application packet did not include either a copy of chapter 21GG-5, Florida Administrative Code or Chapter 489, Florida Statutes. On October 31, 1991 the Application Committee met and considered Petitioner's application. James P. Williams, who also testified in these proceedings, was chairman of the Committee who reviewed Petitioner's application and recommended denial to the Board. By letter dated November 21, 1991 David O'Brien, Executive Director of the Electrical Contractors Licensing Board, notified Petitioner that his application had been denied by the Board for the following reasons: 21GG 5.003(1) lacks three years proven responsible management experience and/or; six years of comprehensive, specialized training, education, or experience associated with an electrical or alarm system contracting business. 21GG 5.005 - Failure to submit any of the items required by the rule. Your business entity portion lacks a Florida Corporate Charter (Certificate of Good Standing). Dunn and Bradstreet Credit Report not acceptable. Upon receipt of this information Dupuy, on behalf of Petitioner, contacted O'Brien several times to get specific details of the documentation desired. Since Petitioner was attempting to qualify for the January 27, 1992 examination time became important. After receiving additional clarification from O'Brien, the business entity portion was satisfied. In response to the demand for evidence that Petitioner had management experience a summary job description of Petitioner's responsibilities as a project manager for TRIAD was sent by FAX to O'Brien (Exhibit 8). As a result of these several telephone conversations and a listing of the duties of a project manager for TRIAD, O'Brien notified Ed James, Bureau of Examination Services, that Fife was authorized to sit for the January 27, 1992 examination and an examination packet containing a pass to take the exam was sent to Fife. On January 27, 1992 Fife travelled to Tampa and took the exam. Results of this exam have not been provided to Petitioner. On February 11, 1992 the Board met to again consider Petitioner's application. In addition to the summary of his job responsibilities as project manager the application file showed that Petitioner was licensed as an electrical contractor in the states of Arkansas, California, Nevada and Tennessee. However, the Board concluded these licenses may have been for a master or journeyman electrician rather than as a electrical contractor, and the summary job description submitted was not conclusive of Petitioner's management experience. On March 2, 1992, O'Brien mailed a second notice of denial to Petitioner (Exhibit 9). This letter states the application was denied for the following reasons: 21GG 5.003(1) Applicant must show that he has three years proven experience in the trade as an electrical contractor or alarm contractor or in a responsible management position with an electrical contractor or an alarm contractor. Please refer to definitions: 21GG- 5.001(3). 489.511 Has at least six years of comprehensive specialized training, education, or experience associated with an electrical or alarm system contracting business. Informal exposure to the trade wherein knowledge and skill is obtained. At the hearing petitioner presented a plethora of evidence attesting to his approximately 20 years experience in the electrical contracting business showing he executed contracts on behalf of TRIAD and Newtron Group, that he hired and fired employees, that as project manager he exercise full control over the projects including approving amendments and changes in the contracts, opened local bank accounts on which he paid the employees working on the project, etc. Petitioner's proposed findings 13-32 are adopted as facts presented to demonstrate Petitioner's experience in the field of electrical contracting. At the conclusion of Petitioner's case, James A. Williams, Respondent's expert who considered Petitioner's initial application and testified in these proceedings, acknowledged that licensure as an electrical contractor in another state with similar requirements as Florida would qualify Petitioner to sit for the examination in Florida; and that had he been privy to the testimony presented at this hearing, when he initially considered Petitioner's application, the application would have been approved.
Recommendation It is RECOMMENDED that a Final Order be entered finding Phillip Ray Fife fully qualified by experience and training to sit for the electrical contractors examination. It is further RECOMMENDED that Phillip Ray Fife's examination grades be released; and, if he passed the January 27, 1992 examination, that he be issued a statewide license as an electrical contractor. DONE and ENTERED this 20th day of July, 1992, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1992. APPENDIX TO RECOMMENDED ORDER Proposed findings submitted by Petitioner are accepted. Those proposed findings not included in the Hearing Officer's findings of fact were deemed unnecessary to the conclusions reached. Proposed findings submitted by Respondent are accepted except as noted below. Those proposed findings neither included in the Hearing Officer's findings nor noted below were deemed unnecessary to the conclusions reached. Rejected. Rejected insofar as Petitioner was fully aware of the reasons his application was rejected. No letter from the Board listed the documentation required by Rule 21GG-5.003(1)(a), Florida Administrative Code. Copies furnished: DAVISSON F DUNLAP ESQ WILLIAM W BLUE ESQ PO BOX 13527 TALLAHASSEE FL 32317 3527 JEFF G PETERS ESQ DEPT OF LEGAL AFFAIRS THE CAPITOL SUITE 1603 TALLAHASSEE FL 32399 1000 DANIEL O'BRIEN/EXECUTIVE DIRECTOR FLORIDA ELECTRICAL CONTRACTORS LICENSING BOARD PO BOX 2 JACKSONVILLE FL 32202 JACK McRAY ESQ GENERAL COUNSEL DEPT OF PROFESSIONAL REGULATION 1940 N MONROE ST TALLAHASSEE FL 32399 0792
The Issue Whether the Petitioner, Bert S. McLaughlin, qualifies for licensure as an unlimited electrical contractor in the state of Florida by endorsement pursuant to Section 489.511, Florida Statutes. Whether the Resolution adopted by the Florida Electrical Contractrors' Board (Board) on July 19, 1985 and readopted in substance on March 30, 1987 and May 15, 1987 estops the Board from denying the Petitioner an unlimited electrical contractor's license by endorsement pursuant to Section 489.511, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On July 19, 1985, the Florida Electrical Contractors' Licensing Board (Board) adopted a Resolution which provides in pertinent part as follows: WHEREAS, the Florida Electrical Contractors Licensing Board has diligently compared its licensing standards with those of the unlimited electrical contractors licensed by the North Carolina State Board of Examiners of Electrical Contractors, and, WHEREAS, the Florida Electrical Contractors Licensing Board has thoroughly reviewed the examinations that North Carolina candidates for unlimited licensure must pass and found them substantially similar to or equivalent to, the Florida licensure examination, now, THEREFORE BE IT RESOLVED, that the Florida Electrical Contractors Licensing Board will, upon receipt of a properly completed application from a properly licensed unlimited North Carolina electrical contractor who has obtained licensure by the North Carolina written exam, license by endorsement in accordance with Section 489.511(9), Florida Statutes NOTICE OF CANCELLATION, this Resolution may be rescinded upon 90 days notice to North Carolina, if it is determined by the Florida Electrical Contractors Licensing Board, that the licensing standards for unlimited electrical contractors in North Carolina are no longer comparable with the licensing standards of certified electrical contractors licensed pursuant to Chapter 489, Florida Statutes The above Resolution was readopted in substance by the Board on March 30, 1987 and Nay 15, 1987. The Board made a specific finding on May 15, 1987, when it readopted the Resolution, that the North Carolina examination for unlimited electrical contractors were "substantially similar to or equivalent to, the Florida licensure examination." The Board relied on that finding, without any further finding as to equivalency of the examinations, to grant licensure by endorsement from unlimited electrical contractors licensed in North Carolina who had successfully passed the North Carolina written unlimited electrical contractors examination up until August 31, 1988. In October, 1988, the issue of the equivalency of the Florida examinations and the North Carolina examinations was raised by the Board. In December, 1988, the Board was provided current and previous examination blueprints of the North Carolina examinations by Block and Associates, who prepared the North Carolina examinations. Upon review of the examination blueprints of the North Carolina examinations, the Board determined that the North Carolina examinations were not "substantially equivalent to" the Florida examinations. This finding was based mainly on the fact that North Carolina's examinations did not contain any portion on business which the Board considered essential. From the documents reviewed by the Board, the Board was unable to make a determination as to whether the business portion of the examination was included in the North Carolina examinations at the time of its finding of equivalency on May 15, 1987. However, the Board did determine apparently based on those documents, no later than its February 1, 1989, meeting, that at the time Petitioner took the North Carolina examination on September 23, 1988 it did not contain a business portion, and thereby was not "substantially equivalent to" the Florida examination. Petitioner took and passed the examination in North Carolina for unlimited electrical contractors on September 23, 1988. On November 28, 1988, Petitioner was granted a unlimited classification licence to practice electrical contracting in the state of North Carolina. Petitioner submitted an application to the Board on December 8, 1988, for licensure as an unlimited electrical contractor in the state of Florida by endorsement based on having passed the North Carolina examination, being licensed in the state of North Carolina as an unlimited electrical contractor and practicing electrical contracting in the state of North Carolina. On December 22, 1988, the state of North Carolina was notified by Paul H. Morgan, Jr., Chairman, Florida Electrical Contractors' Licensing Board that the 90 day cancellation provision of the Resolution was in effect and the "endorsement agreement" would be cancelled effective March 22, 1989. The Board did not officially authorize the letter by Mr. Morgan. The Board's official position was that the "endorsement agreement" was of no effect. Petitioner obtained a City of Winston-Salem, North Carolina, City Privilege License, as an electrical contractor with one helper on January 5, 1989. At its February 1, 1989, meeting the Board reviewed Petitioner's application for licensure by endorsemert, and by letter dated February 28, 1989, advised Petitioner of its denial based on the criteria for issuance of his North Carolina license not being equivalent to the criteria set forth for licensure in the state of Florida at the time Petitioner received his North Carolina license. At its March 15, 1989, meeting the Board again reviewed Petitioner's application, and by letter dated March 15, 1989, advised Petitioner of its decision to uphold its denial of his application of February 1, 1989 as set out in its letter of February 28, 1989. Although not specifically addressed in the letters dated February 28, 1989 and March 15, 1989, the criteria which caused the Board concerned was the lack of North Carolina's examination being "substantially equivalent to" the Florida examination, whether the Petitioner had been engaged in electrical contracting in North Carolina immediately preceding his application for licensure by endorsement in Florida and whether North Carolina required Petitioner to show certain financial responsibility standards prior to issuance of Petitioner's electrical contractor's license in North Carolina. In its letter of February 28, 1989 the Board advised Petitioner that although it had denied his application for licensure by endorsement, it had approved his application as one for licensure by examination. The Petitioner has presently elected not to take the Florida unlimited electrical contractors' examination or the examination for licensure as an alarm system contractor. Prior to taking and passing the North Carolina electrical contractor's examination, Petitioner had been engaged in all types of electrical contracting work, including fire alarm installation, in several counties in the state of Florida, and was licensed in several Florida counties as a county master electrical contractor but not as a state certified unlimited electrical contractor. Under the present law in Florida, county master electrical contractors, who are not state certified electrical contractors or licensed to practice alarm system contracting by the state of Florida, cannot practice alarm system contracting in the state of Florida. It was Petitioner's intent at the time of taking the North Carolina examination to open an electrical contractor's business with his brother in North Carolina. Petitioner's primary reason for taking the North Carolina examination was to further this business relationship with his brother in North Carolina.. However, secondary to obtaining the North Carolina license, was licensure by endorsement in Florida. While Petitioner was aware of Florida's "endorsement agreement" with North Carolina at the time he took the North Carolina examination, there was no evidence to show that the Petitioner relied on this "endorsement agreement" to his detriment. Subsequent to obtaining his North Carolina license, Petitioner's brother died, and the North Carolina business was put on the "back burner" so to speak. Two electrical permits for electrical work was "pulled" by Petitioner in the City of Winston-Salem, North Carolina on March 6, 1989 and with the work being inspected and approved on March 8, 1989. A third electrical permit was "pulled" by Petitioner for electrical work in the City of Winston-Salem, North Carolina on March 6, 1989 but there was no evidence to show that this work was completed by Petitioner. There was no evidence to show that the North Carolina electrical contractors' examination was "substantially equivalent to" the Florida electrical contractors' examination. In fact, the Petitioner stipulated at the beginning of the hearing that he was relying entirely on Florida's "endorsement agreement" with North Carolina.
Recommendation Based upon the foregoing Findings of Fact the Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Board enter a final order denying Petitioner's application for licensure as a unlimited electrical contractor by endorsement. DONE AND ENTERED this 20th day of September, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 89-2614 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the Petitioner's proposed finding of fact: 1(1); 2(2); 3(1); 5(3); 7-8(15); 9(6); 10(7,19); 11(16); 12(18); and 15(9). Proposed findings of fact 4 and 13 are unnecessary to the conclusion reached in the Recommended Order. Proposed findings of fact 14 is rejected as not being supported by substantial competent evidence in the record. See Findings of Fact 11 and 13. Letter referred to the equivalency of criteria. Proposed findings of fact 16 and 18 are rejected as not being supported by substantial competent evidence in the record. See Findings of Fact 4 and 6. Proposed finding of fact 6 is more correctly considered as a Conclusion of Law. Although proposed finding of fact 17 is a restatement of Neely's testimony it is rejected as not being supported by substantial competent evidence in the record. See Proposed Finding of Fact 9. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the Respondent's proposed finding of fact: 1(1); 2(2); 4(4); 5(6,16); 6(8); 7(10); 8(19); 9(11); 10(12) and 11(12). Proposed finding of fact 3 is more correctly described as a Conclusion of Law. COPIES FURNISHED: Steven Meisel, Esquire 5425 St. Augustine Road Jacksonville, Florida 32207 Clark R. Jennings, Esquire Assistant Attorney General Department of Legal Affairs Suite 1603 - The Capitol Tallahassee, Florida 32399-1050 Ms. Pat Ard Executive Director Florida Board of Electrical Contractors 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
The Issue Whether Respondent violated Subsection 489.531(1), Florida Statutes (2003),1 by engaging in the unlicensed practice of electrical contracting, and, if so, what disciplinary action should be imposed.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times material hereto, Respondent was not licensed or had ever been licensed to engage in electrical contracting in the State of Florida. At all times material hereto, Sundance Home Remodeling, Inc., did not possess a certificate of authority to practice as an electrical contractor qualified business. At all times material hereto, Respondent was the sole owner/operator of Sundance Home Remodeling, Inc. Respondent has an occupational carpentry license from Hillsborough County, Florida, and uses the general contractors’ licenses of others. In April 2003, Respondent contracted with Phyllis Price to do the following work at Ms. Price's residence in Riverview, Florida: enclose her back porch, add on a screened room, change the French doors in some of the bedrooms, and install electric ceiling fans, an electric outlet, and an exterior light. On or about April 17, 2003, Respondent contracted with Ms. Price to install and hook up four electric ceiling fans and install one exterior light for $130.00. On or about April 26, 2003, Respondent submitted a proposal to Ms. Price for the installation of one electric outlet at her residence for $25.00. Respondent completed the work that he contracted to do for Ms. Price, including the electrical work. Ms. Price paid Respondent at least $5,240.00 for the work that he performed. Of that amount, Ms. Price paid Respondent a total of $180.00 for the electrical work he performed at her residence. The electrical work contracted and performed by Respondent required a permit. No evidence was presented that, prior to this time, Respondent has been subject to disciplinary action for the unlicensed practice of electrical contracting. The total investigative costs to the Department of Business and Professional Regulation, excluding costs associated with any attorney’s time, was $313.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered that (1) finds Respondent not guilty of the charges alleged in Count One of the Administrative Complaint; (2) finds Respondent guilty of the charges in Count Two and Count Three of the Administrative Complaint; (3) imposes on Respondent an administrative fine of $1,000.00 for each violation, for a total administrative fine of $2,000; and (4) assesses Respondent costs of $313.00, for the investigation and prosecution of this case, excluding costs associated with an attorney's time. DONE AND ENTERED this 27th day of July, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2006.
The Issue The issue is whether Respondent (“Ricky Lee Diemer”) offered to engage in unlicensed contracting as alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency responsible for regulating the practice of contracting pursuant to section 20.165, Florida Statutes, and chapters 455 and 489, part I, Florida Statutes. The Department initiated an undercover operation by gaining access to a house needing numerous repairs. The Department employees then utilized websites, such as Craigslist and HomeAdvisor, to identify people offering unlicensed contracting services. The Department employees found an advertisement posted by “RLD Handyman Services” on December 26, 2017, offering to perform multiple types of contracting work. This advertisement caught the Department’s attention because it did not list a contracting license number. Section 489.119(5)(b), requires every advertisement for contracting services to list such a number.2/ The advertisement listed a phone number, and the Department utilized the Accurint phone system to ascertain that the aforementioned phone number belonged to Mr. Diemer. The Department examined its records and ascertained that Mr. Diemer was not licensed to perform construction or electrical contracting in Florida. The Department contacted Mr. Diemer and approximately 12 other people offering contracting services and scheduled appointments for those people to discuss contracting work with an undercover Department employee at the house mentioned above. An undercover Department employee told Mr. Diemer and the other prospective contractors that he had recently bought the house and was hoping to sell it for a profit after making some quick repairs. An undercover Department employee met Mr. Diemer at the house and described their resulting conversation as follows: A: We looked at remodeling a deck on the back, the southern portion of the home. We looked at cabinets, flooring and painting that are nonregulated in nature, but also plumbing and general contracting services such as exterior doors that needed to be replaced, and the electrical, some appliances and light fixtures. Q: All right. So was there any follow-up communication from Mr. Diemer after your discussion at the house? A: Yes. We walked around the house. He looked at the renovations that we were asking. He took some mental notes as I recall. He didn’t make any written notes as some of the others had done. He did it all in his head, said that he was working on another project in the Southwood area at the time and just left his work crew there to come and visit with me and was rushed for time. So he was in and out of there in 10 to 15 minutes. It was pretty quick. Q: Okay. A: But he took the mental notes and said that he would go back and write something up and send me a proposal through our Gmail. . . . On February 7, 2018, Mr. Diemer transmitted an e-mail to the Department’s fictitious Gmail account offering to perform multiple types of work that require a contracting license: kitchen sink installation, bathroom remodeling, construction of an elevated deck and walkway, installation of light fixtures, and installation of front and back doors.3/ Mr. Diemer proposed to perform the aforementioned tasks for $13,200.00.4/ The work described in Mr. Diemer’s e-mail poses a danger to the public if done incorrectly or by unlicensed personnel.5/ The Department incurred costs of $118.55 for DOAH Case No. 18-6578 and $91.45 for DOAH Case No. 18-6579. The Department proved by clear and convincing evidence that Mr. Diemer advertised or offered to practice construction contracting without holding the requisite license. The Department also proved by clear and convincing evidence that Mr. Diemer practiced construction and electrical contracting when he transmitted the February 7, 2018, e-mail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order requiring Ricky Lee Diemer to pay a $9,000.00 administrative fine and costs of $210.00. DONE AND ENTERED this 1st day of April, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2019.
