Findings Of Fact On February 4, 2008, the Department filed a two-count Administrative Complaint against Boetzel, alleging that Boetzel violated sections 481.323(1) and 489.531(1), Florida Statutes (2006), in that Boetzel engaged in the unlicensed practice of landscape architecture and electrical contracting. The following pertinent facts were alleged in the Administrative Complaint: At no time material hereto were Respondents the holders of valid licenses to engage in the practice of landscape architecture pursuant to Chapter 481, Part II, Florida Statutes. At no material time hereto were Respondents the holders of valid licenses to engage in the practice of electrical contracting pursuant to Chapter 489, Part II, Florida Statutes. At all times material hereto, Respondent TODD P. BOETZEL was the Registered Agent and Officer/Director/President of Respondent BOETZEL LANDSCAPING, INC. Respondents' last known address is 2534 22nd Avenue North, St. Petersburg, Florida 33713. On or about June 5, 2007 Respondents submitted an invoice to Southern Cross Construction for site preparation, including grading, placement of plantings, and installation of an irrigation system at a construction site in Reddington [sic] Beach, Florida. The aforementioned invoice also included electrical contracting work. On or about June 19, 2007 Respondent Todd P. Boetzel signed a sworn Claim of Lien indicating that he provided "Landscaping, Sod, and Irrigation" for the aforementioned project. Respondent was paid a deposit of $8,000.00 by check number 1274 on May 25, 2007. Boetzel requested an administrative hearing, and the case was referred to DOAH. A final hearing was held, and the Administrative Law Judge entered a Recommended Order, recommending that a final order be entered finding that Boetzel did not engage in the unlicensed practice of landscape architecture and electrical contracting. On October 28, 2008, the Department filed a Final Order, which adopted the Findings of Fact and Conclusions of Law in the Recommended Order and found that Boetzel was not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. On November 17, 2008, Boetzel filed a Verified Petition and Affidavit for Attorney's Fees and Costs under Florida Statutes § 57.111 (2006). The petition included an Affidavit for Attorney's Fees executed by the attorney for Boetzel, stating that 102.2 hours of attorney time had been rendered in the case and that the usual rate was $300.00 per hour. The total amount claimed for attorney's fees is $30,660.00. The petition also included a Bill of Costs executed by Todd P. Boetzel, which included costs for services of process and transcripts. The total amount claimed for costs is $1,327.30. On December 8, 2008, the Department filed Respondent's Answer to Initial Order. The answer stated: The Department does not dispute the reasonableness of the fees and costs submitted by Petitioner. The Department does not dispute that Petitioner [sic] were a prevailing party in the underlying proceeding. The Department does not dispute that Petitioner [sic] are a small business party. The Department does not dispute that it was non-nominal party at the underlying proceeding. The Department knows of no circumstances or facts that would make an award of attorney's fees to Petitioner unjust in the present case. * * * The Department alleges that its actions in prosecuting this matter were substantially justified, thereby negating Petitioners' entitlement to attorneys' fees. The only disputed issue in the instant case is whether the Department was substantially justified in issuing the Administrative Complaint. In February 2008, Laura P. Gaffney (Ms. Gaffney) was the chief attorney in the unlicensed activity section of the Department. Her primary responsibility was to review incoming cases and determine whether the cases should be closed out, whether additional investigation was needed, or whether charges should be filed in the form of an administrative complaint. Ms. Gaffney had been delegated the authority by the Secretary of the Department to make probable cause findings on cases dealing with unlicensed activity.2/ In making her determination of whether there was probable cause to file an administrative complaint, Ms. Gaffney considered the investigative report dated December 29, 2007, and a supplemental report dated January 19, 2008. The investigative file included a complaint filed by Steve Petrozak (Mr. Petrozak), a licensed general contractor and manager of Southern Cross Construction, alleging that Boetzel had engaged in the unlicensed practice of landscape architecture. The complaint described the work performed by Boetzel as "landscaping, lawn irrigation, sod." The complaint filed by Mr. Petrozak included an invoice from Boetzel for the work performed. The invoice was for the planting of various plants, site preparation, irrigation, installation of pine bark, and lighting. The site preparation was described in the invoice as follows: "Sodcut areas to be planted, remove unwanted vegetation and haul away, prepare areas for planting, stump grind. Grade entire property and create swale down left side." The lighting work was described in the invoice as follows: "Install Low Voltage Halogen Lights, uplight 3 foxtail palms, 1 adonidia palm and 2 lights on mailbox, with one automatic transformer. Additional transformer." The investigative file also included a letter dated November 7, 2007, from Gregory Elliott, an attorney representing Boetzel. Mr. Elliott stated that Boetzel was not in the business of landscape architecture, but was in the business of selling and installing landscape materials for residential or commercial use. Mr. Elliott described Boetzel as a laborer or materialman working under the general contractor. Ms. Gaffney felt that the "single most important part of this investigative report" was the sworn claim of lien filed by Boetzel, which stated that Boetzel had furnished "labor, services and material consisting of Landscaping, Sod, and Irrigation" at the property situated at 511 161st Avenue, Redington Beach, Florida. Ms. Gaffney assumed that because the work performed by Boetzel included grading the property and creating a swale that Boetzel had set the grades for the grading and had designed the swale. The investigative report does not contain sufficient information to make that determination. Such information could easily have been obtained from Mr. Petrozak, but the investigator did not get the information nor did Ms. Gaffney request the information. Ms. Gaffney assumed that because transformers were being provided and that halogen lights were being installed that Boetzel hardwired the installation of the lights and transformers. She assumed that because lights were being placed near a mailbox that the work would entail more than plugging in the lights. The information contained in the investigation file is insufficient to supports such assumptions. The investigator could have obtained the necessary information from Mr. Petrozak, but did not do so nor did Ms. Gaffney request the information.
Findings Of Fact At all time material hereto, Respondent, Ronald J. Gurney, has been registered as an electrical contractor in the State of Florida, having been issued license number ER0004532, and held certificates of competency as an electrical contractor issued by Dade County and Broward County, Florida. By letter of July 25, 1989, Metropolitan Dade County charged the respondent with violating various sections of Chapter 10, Dade County Code. Specifically, such letter charged that between August 22, 1988, and June 16, 1989, with regard to jobs at 1520 Euclid Avenue and 531-41 16th Street, Miami Beach, Dade County, Florida, the respondent did: . . . violate Section 4505.5(a) of the South Florida Building Code (SFBC) by failing to obtain the mandatory rough inspection of work performed under Permit . . . said violation evidencing a failure to maintain the affirmative conditions of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. . . . unlawfully violate Section 10-22(b) of the Code of Metropolitan Dade County . . . [by] abandon[ing] without legal excuse . . . [such] . . . electrical job[s]. . . . . . . unlawfully violate Section 10-22(g) of the Code of Metropolitan Dade County . . . [by] fail[ing] to fulfill . . . [his] . . . contractual obligation to complete . . . [such] . . . electrical job. . . . Such letter further advised respondent that a formal hearing would be held on September 5, 1989, before the Construction Trades Qualifying Board (CTQB) to consider such charges, and what, if any, disciplinary action should be taken. On September 5, 1989, respondent appeared for the hearing, as scheduled, however, because the complaining witnesses did not appear, the CTQB continued the hearing. Thereafter, the hearing was rescheduled for November 21, 1989, and respondent did not appear. Notwithstanding, the CTQB proceeded with the hearing, and following its consideration of the evidence found that respondent had violated Sections 10-16(a), 10-22(b) and 10-22(g), Dade County Code, and issued a reprimand, fined respondent $2,500.00, suspended his certificates for three years, and revoked his certificates. By letter of December 1, 1989, Dade County advised respondent of the foregoing decision, and advised him of his right to appeal the decision of the CTQB. Respondent did not appeal such decision but, rather, filed a motion, through counsel, with the CTQB to vacate its decision based on respondent's contention that he did not receive notice of the November 21, 1989, hearing. Such motion was denied on January 9, 1990, and respondent did not appeal or otherwise seek review of such decision. At hearing, respondent offered proof, which is credited, that as a consequence of the action taken by Dade County he lost his position as Chief Electrical Inspector for the City of Hialeah; a position that paid $50,000.00 a year. Here, there was no suggestion or proof that respondent had previously been the subject of any prior disciplinary proceeding. To the contrary, the only proof of record on this issue was offered by respondent, and demonstrated that the action brought by Dade County was his first offense.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty of having violated the provisions of Section 489.533(1)(n), Florida Statutes, which imposes an administrative fine against him in the sum of $250.00, and which places his license on probation for a period of two years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK 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 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: 1 & 2. Addressed in paragraph 1. 3-7. Addressed in paragraph 2, otherwise rejected as unnecessary detail. Addressed in paragraph 3. Rejected as not supported by competent proof. 10-14. Addressed in paragraph 3. 15-19. Addressed in paragraph 4. COPIES FURNISHED: Robert G. Harris, Esquire Senior Attorney Department of Professional Regulation 1620 Medical Lane, Suite 148 Fort Myers, Florida 33907 Ronald J. Gurney 11201 Southwest 55th Street Box 79 Miramar, Florida 33025 Daniel O'Brien, Executive Director Electrical Contractors Licensing Board Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner graduated from a technical high school in Massachusetts and studied electricity at the Wentworth and Coyne Institutes. He served a three year apprenticeship and subsequently obtained the Massachusetts journeyman and master electrician licenses. He entered the electrical contracting business in 1960 and thereafter engaged in commercial, industrial, and residential electrical contracting work in Massachusetts. All projects were completed without default. Petitioner moved to Florida one year ago intending to set up an electrical contracting business here. However, Respondent denied his application for licensure by endorsement and he has deferred his business plans until the licensing issue is resolved.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Robert F. Toscano for licensure as an electrical contractor by endorsement be denied. DONE AND ENTERED this day of March, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6 day of March, 1981. COPIES FURNISHED: Susan Tully, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Mr. Robert F. Toscano Post Office Box 1563 Belleview, Florida 32620
The Issue By Administrative Complaint filed September 2, 1977 the Florida Electrical Contractors' Licensing Board (FECLB) seeks to revoke, annul, withdraw or suspend the state electrical contractor's certification of Michael Lang who holds certificate No. 0000227, and Lang's right to do business thereunder. As grounds therefor it is alleged that Lang pulled the permits on 5 homes under the authority of his state license where work was to be done by Blue Streak Electric in which Lang had no interest. This was alleged to constitute violation of 468.190(2)(a), (b), (c), and (d)F.S. Five witnesses, including Respondent, testified and three exhibits were admitted into evidence.
Findings Of Fact Michael T. Lang holds state electrical contractor license No. 0000227 and has been so licensed for about 3 years. He also holds Palm Beach and Broward County electrical contractor's licenses. Lang has never done any electrical contracting work under his state certificate outside Broward or Palm Beach counties. Wayne Johnson is a journeyman electrician who has been employed by Lang since about 1973. Johnson worked on numerous houses for which Lang was the contractor and served as Lang's alter ego in many business functions such as ordering supplies, submitting proposals for bids, and signing checks. In 1976 Lang encountered financial reverses due to the construction industry slump and was close to being closed down by IRS. It was difficult for him to obtain supplies with IRS attaching bank accounts and accounts receivable. Johnson formed Blue Streak Electric to perform electrical repairs on weekends and evenings to supplement his dropping income from Lang. Blue Streak was not a qualified corporate electrical contractor although Johnson and Lang had discussed the concept of qualifying Blue Streak to be able to get supplies that Lang was finding increasingly difficult to do. Before the necessary information had been submitted to qualify Blue Streak, Johnson bid on 5 house wiring jobs in Palm Beach County and obtained the contracts under Blue Streak Electric. The permits were pulled by Mike Lang Electric (Exhibits 1, 2, and 3) and under his county contractor's certificate number U8732. On the application for electrical permits (Exhibits l, 2, and 3) here involved, in the blank following "State and County Occupational License No." was entered "227". No evidence was presented regarding the occupational license number of Lang but 227 is the number of his state certification. Some two weeks after the work was commenced under the Blue Streak contract and was about fifty percent complete, the building inspectors stopped the work because Blue Streak was not a licensed electrical contractor. Johnson had been, and was at the time, a salaried employee of Lang who was supervising the work done under these contracts. Upon stopping of the work by the Palm Beach County inspectors these contracts were turned over to Mar Electric who employed Johnson to complete the work he had initially bid on. Mar visited the sites from time to time and received payment from the builder for the work performed. Lang received no income from these projects. Lang was not an officer in Blue Streak and had no financial interest in Blue Streak at any time here involved. Upon learning that Johnson had entered the bids by Blue Streak and pulled the permits under Lang's license, Lang recognized that problems could ensue but this information was received only a couple of days before the work under Blue Streak's contract was stopped. About the same time the work by Blue Streak was stopped by the inspector the IRS levied on Lang and closed his business. The Palm Beach County licensing authority took action against Lang and, in April, 1977 suspended his county electrical contractor's license for one year on the same facts here involved.
Findings Of Fact At all times material to this proceeding, the Respondent, Joseph Davidow, was licensed as a general contractor with the Florida Construction Industry Licensing Board. On August 3, 1978, the Respondent entered into an agreement with Rubin Zimmerman, Vice-president of Gilbert's Fish Camp, Inc., located in Monroe County, to construct an addition and make alterations to an existing motel. The contract specified the work to be done, for which the Respondent was to receive $190,000 with a completion date within 90 days of the contract. The Respondent was recommended to Mr. Zimmerman, the complainant in this case, by Mr. Zimmerman's architect on the project, Seymore Drexler, AIA. The Respondent originally bid the project at $210,000 of which $19,000 was allocated for electrical work to be performed by a qualified sub-contractor. The complainant believed that the original bid for electrical work was too high and suggested that the Respondent contact Mr. Charles Katzman of Kay Electric, a long-time friend of the complainant. Mr. Katzman was able to obtain his permits on the project despite being unlicensed in Monroe County, a fact which was not known by either the Respondent or the complainant at the time. Mr. Katzman bid $13,500 on the project which was $5,500 under the lowest bid received by the Respondent and was, therefore, awarded the project. During the course of the construction, numerous problems arose which affected the progress on the site. The complainant and his business partner, Harry Gilbert, made numerous requests for changes in the original plans and specifications. The "extras" requested by the complainant and/or his business partner were generally done orally on the site and at times through direct negotiations between the complainant and the Respondent's sub-contractors or workmen. The changes in the specifications included modifications to the flooring, patio, laundry and storage room, grade beams, pilings, walkways, stairs, patio wall, diningroom walls, linen closet, bathroom windows and walls, outside planter, doors and support system for electrical cooling. A dispute arose between the Respondent and the complainant and Mr. Gilbert over the cost and the extent of the change orders. Additionally, the Respondent was concerned because the extras requested by the complainant diverted his sub-contractors and/or workmen from the basic project to areas not contemplated by the contract. Certain of the electrical work performed by Mr. Katzman was negotiated separately from the original contract. Romex an illegal electrical wire was used on the project, but this was not known by the Respondent nor was Romex used in any of the electrical work specified in the original plans. Due to the continuing dispute over the cost of the extras and the diversion of workers for additional "extras," the Respondent sent the Monroe County Building and Zoning Department on April 12, 1979, a notice of withdrawal as general contractor on the subject project. Since that time liens have been filed against the project by suppliers of materials and/or labor which have been satisfied by the corporation. Civil litigation involving Kay Electric also has been instituted. The building inspection reports maintained by Monroe County concerning this project are incomplete.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department dismiss the complaint filed against the Respondent, Joseph Davidow. DONE and ORDERED this 26th day of November, 1980, in Tallahassee, Leon County, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980. COPIES FURNISHED: Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Arthur W. Karlick, Esquire 1454 NW 17th Avenue Miami, Florida 33125 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. Case No. 80-382 JOSEPH DAVIDOW, CG C007463 Respondent. /
