The Issue Whether the Respondent is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with regulating the practice of professions pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. The ECLB is charged with regulating the practice of electrical contracting pursuant to Section 489.507, Florida Statutes. Pursuant to Rule 61G6-4.006, Florida Administrative Code, the ECLB has established a Probable Cause Panel to determine whether probable cause exists to believe that a violation of governing statutes has occurred. Mr. Borota is, and was at all times material to this matter, licensed as a Registered Electrical Specialty Contractor, having been issued license numbers ET 0000218 and ES 0000213. Mr. Borota is, and was at all times material to this matter, the licensed qualifier for his wholly owned Florida corporation, Communication Installation and Service Co., Inc. Subsection 489.517(3)(a), Florida Statutes, requires a licensee to provide proof of completing at least 14 classroom hours of continuing education courses during each biennium following issuance of the license. Rule 61G6-9.003(2), Florida Administrative Code, defines "course" as "any course, seminar or other program of instruction which has been approved by the board for the purpose of complying with the continuing education requirements for electrical and alarm contractors." Rule 61G6-9.004(1), Florida Administrative Code, requires that licensees provide proof of completion of at least 14 classroom hours of continuing education courses "approved by the board." Rule 61G6-9.005(1)(a), Florida Administrative Code, requires course sponsors to register with the ECLB prior to submitting their courses to the board for approval. Rule 61G6- 9.005, Florida Administrative Code, provides that accredited universities and colleges which offer courses in the contracting areas specified in Part II of Chapter 489, Florida Statutes, are deemed admitted as course sponsors. Rule 61G6-9.006(1), Florida Administrative Code, allows a registered course sponsor to submit to the ECLB an application for approval of a continuing education course, and provides that relevant courses offered by accredited universities and colleges are deemed approved. The ECLB regularly publishes a list of approved continuing education courses. Rule 61G6-9.002, Florida Administrative Code, sets forth criteria for continuing education. The following sets forth the relevant portions of the rule as it read during the period relevant to this case: The following programs of continuing education may be used to satisfy the continuing education requirement provided that the licensee complies with the terms set forth herein: Courses for credit which are business, technical or safety courses relevant to the electrical contracting industry and which require a passing grade taken at an accredited college, university, or community college. The licensee must furnish an official transcript and a notarized statement affirming classroom hours attended and the receipt of a passing grade. Noncredited courses conducted by an accredited institution of higher learning, official governmental agency, the military, or recognized national or state trade or civil organization provided the following conditions are met: the course must be business, technical or safety course relevant to the electrical contracting industry. the course must follow a written text, which must be submitted to the Board for approval on request. the instructor of the course must be a professional educator, certified electrical contractor or a similar authority in the field. The licensee must submit a notarized statement affirming the following: Number of classroom hours attended Sponsor of the course Location of the course Date of the course Name of the instructor and his credentials Benefit received from the course George Ayrish, program administrator for the ECLB, testified that Rule 61G6-9.002, Florida Administrative Code, allows a licensee to obtain credit for courses that are not on the approved list, provided the substantive criteria for continuing education courses are met and the notarized statement is filed. The ECLB conducts random audits of its licensees every two years. On January 27, 1997, the ECLB sent Mr. Borota a written notice that his license was undergoing such an audit for the period September 1, 1994, through August 31, 1996. The notice requested that Mr. Borota provide, among other items not relevant to this proceeding, certification that he had completed the required continuing education hours. Mr. Borota responded with certificates of attendance at three separate technical electrical contracting courses presented by equipment vendors: a "3M Hot Melt Fiber Optics Connectors" course offered by 3M Telecom Systems Division on June 25, 1995; a "Category 5" cabling installation course offered by The Siemon Company on December 5, 1995; and an "Installation Certification Program" offered by Ortronics Open System Architecture Networking Products on June 19, 1995. None of these courses were included in the ECLB’s list of approved continuing education courses. By letter dated March 18, 1997, the ECLB informed Mr. Borota that the courses submitted as evidence of continuing education must be "Board approved" and "completed within the audit period." Mr. Borota responded with a certificate indicating that he had completed "product application training" and was thus a certified installer for Superior Modular Products, Inc. The certificate was dated July 31, 1995. This course was not included in the ECLB’s list of approved continuing education courses. On August 18, 1997, Mr. Ayrish filed a Uniform Complaint Form alleging that Mr. Borota did not provide proof of continuing education as required by Rule 61G6-9.004(1), Florida Administrative Code. The complaint was forwarded to Kathy MacNeill, a senior consumer complaint analyst for the Department of Business and Professional Regulation. By letter dated October 9, 1997, Ms. MacNeill advised Mr. Borota that a complaint had been filed against him. She enclosed a copy of Mr. Ayrish’s complaint. The letter requested that Mr. Borota submit a written response within 20 days. By letter dated October 13, 1997, Mr. Borota responded to Ms. MacNeill’s request. He wrote, in relevant part, that: Regarding the continuing education for ET 0000218 I did send the certificates of classes that I had taken during the audit time in question. All of the classes that I had taken covered communications cabling which is what our company does. Most of the classes that are held by the contractors schools that are recommended for low voltage systems licensing cover information on security systems cabling and we do not do that kind of work. Please advise if I need to send any additional information or what I will need to do to close this case. No further direct communication occurred between Mr. Borota and Ms. MacNeill. Mr. Borota testified that he attempted to phone the Department a few times after the exchange of letters, but that he never spoke to anyone. Ms. MacNeill prepared a written Investigative Report, dated November 6, 1997, stating an alleged violation of failure to provide proof of continuing education and forwarding the matter to the Department’s legal counsel "for whatever action is deemed appropriate." The Complaint and the audit file were placed on the docket for consideration by the Probable Cause Panel of the ECLB at a telephonic conference on March 20, 1998. On the same date, a Memorandum Of Finding was signed by the chairperson of the Probable Cause Panel, indicating probable cause was found. The Department issued an Administrative Complaint on March 23, 1998, alleging that Mr. Borota failed to submit proof in response to the audit of having complied with the continuing education requirements of Subsection 489.517(3), Florida Statutes, and the rules promulgated thereunder. Mr. Borota was served with the Administrative Complaint on March 30, 1998. On April 21, 1998, Mr. Borota timely filed his written Election Of Rights disputing the material facts set forth in the Complaint and demanding an evidentiary hearing pursuant to Subsection 120.57(1), Florida Statutes. On the same date, Mr. Borota also submitted an affidavit, substantially complying with Rule 61G6-9.002(2), Florida Administrative Code, attesting that he had attended 30 additional hours of continuing education courses during the audit period. These courses were professional seminars provided at the annual winter meeting of Building Industry Consulting Service International, Inc. (“BICSI”), a non-profit telecommunications technical association. The materials for the BICSI conferences show that the University of South Florida was a co-sponsor of the event. The BICSI seminars were not on the ECLB’s list of approved continuing education courses. On August 6, 1998, counsel for the Department filed a Motion For Final Order, arguing that there were no disputed issues of material fact in the case because none of the courses submitted by Mr. Borota were on the ECLB’s approved list of continuing education courses. The ECLB denied the Department’s motion and agreed to refer the Administrative Complaint to the Division of Administrative Hearings ("DOAH") for the conduct of a formal administrative hearing. The case was never forwarded to DOAH. The record does not disclose why the case remained at the ECLB for nearly two years following the ECLB’s denial of the Motion for Final Order. The Administrative Complaint was again considered by the Probable Cause Panel of the ECLB on May 23, 2000. On the same date, a Memorandum Of Finding was signed by the chairperson of the Probable Cause Panel that determined no probable cause was found and that the Administrative Complaint should be dismissed. Both meetings of the Probable Cause Panel were tape recorded. The tapes were of such poor quality that a certified transcript of the meetings could not be prepared by either an independent court reporter or the Department. Redacted tape copies and an uncertified transcript of the meetings were admitted into evidence by agreement of the parties. The transcript is sufficient to show that the March 20, 1998, Probable Cause Panel treated Mr. Borota’s case in a pro forma fashion, without discussion of the particulars of the investigation, prior to making a finding of probable cause to proceed against Mr. Borota. At the hearing in the instant case, the Department admitted that Mr. Borota was the prevailing party in the disciplinary proceeding because the Administrative Complaint was dismissed upon a finding of "no probable cause" at the May 23, 2000, Probable Cause Panel meeting. Mr. Borota testified that he was the sole owner and qualifying licensee of the corporation through which he practiced as a licensed electrical contractor, that his net worth was less than $2 million, and that he and the corporation employed fewer than 25 workers. The Department offered no evidence to dispute Mr. Borota’s testimony on these points.
Findings Of Fact The Petitioner submitted an application for the certified electrical contractor's examination to the Respondent in January, 1983. The Respondent is an agency of the State of Florida charged with enforcing the standards of licensure for electrical contractors, pursuant to Chapter 489, Florida Statutes, and Chapter 21GG, Florida Administrative Code, and with administering and enforcing the licensure and practice standards of electrical contractors in the State of Florida. The application filed by the Petitioner indicated that he had been employed as a Journeyman electrician with Mozart Electric, Inc., of Chicago, Illinois, since October, 1978. The application on its face showed no further experience in the electrical contracting trade possessed by the Petitioner, except as a Journeyman electrician for that company. The Petitioner was born in Berlin, Germany, in 1934. In 1950, when he was 16 years old, he became an apprentice electrician, working and learning the trade with a view toward becoming a Journeyman and ultimately a Master electrician. He was licensed in Berlin as a Journeyman electrician on September 12, 1953. He worked in that capacity in Germany until 1955, when he immigrated to the United States. In 1955, he settled in Chicago and was licensed as a Journeyman electrician and joined the Electrical Worker's Union Local 134 in Chicago in that classification. From 1957 to 1958, the Petitioner served as a "Master electrician" in the United States Army. The Petitioner has chosen to maintain his union membership so he was thus precluded from being employed in a job classification with the title of "contractor". Since the mid-1950's, however, the Petitioner has been in charge of and in a supervisory position on electrical contracting jobs. For instance, with Mozart Electric, his present employer since 1978, the Petitioner has typically supervised a crew of eight men in performing the electrical contracting portion of large commercial construction jobs. In that capacity, the Petitioner works in an unsupervised fashion and "lays out" the job, estimates the scope and cost of the work, solely supervises the men on the job, makes shop drawings, and solely inspects the finished job. The Petitioner, although he does not do the bidding himself, often does the estimating upon which bids are predicated. In addition, the Petitioner's activities and duties with Mozart Electric, Inc. include making corrections to blueprints, conferring with architects to work out necessary changes, promulgating time schedules, hiring and laying off electricians, and coordinating the electrical construction work with other trades on a given job. In this, or a similar capacity, he has worked with four electrical contracting companies since coming to the United States. Thus, he spent 17 years with Klorek Electric as a Journeyman, then foreman, then superintendent. The Petitioner spent two years with Gibson Electric Company as a foreman; four years with Midland Electric Company as a superintendent; and five years with his present employer, Mozart Electric, Inc. in performance of the above sort of duties. It has therefore been established that the Petitioner has worked for a substantial portion of the last 28 years in a capacity other than as merely a Journeyman electrical worker an a job site, but rather has typically worked in a supervisory capacity for most of those 28 years. Indeed, for most jobs performed during that time, the Petitioner was superintendent of the job and was solely responsible directly to the president of his company for the quantity and quality of work performed by his men, whom he supervised unassisted by anyone else.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the application of Hans Rossignol to be permitted to take the examination for certified electrical contractors should be GRANTED. DONE and ENTERED this 24th day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 24th day of October, 1983. COPIES FURNISHED: Mr. Hans Rossignol c/o Mozart Electric, Inc. 2427 North Claybourne Avenue Chicago, Illinois 60614 Susan Tully, Esquire Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301 Allen R. Smith, Jr., Executive Director Florida Electrical Construction Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner is entitled to a passing grade on the Electrical Engineering licensure examination given on April 24, 1998.
Findings Of Fact On April 24, 1998, the Petitioner took the electrical engineering licensure exam. By means of an Examination Grade report dated July 30, 1998, the Petitioner was advised that his examination had received a failing score. The Petitioner went through the examination review process. Following that process, the Petitioner contended that he was entitled to a higher score on each of three examination items. The examination items at issue are numbers 291, 294, and 295. The Petitioner's response to item number 291 was assigned a grade of 4. If graded correctly, the Petitioner's response to item number 291 would have credited him with correct answers for parts a, b, and c, and with a partially correct, but incomplete, answer to part d of that item. Under the scoring plan for item number 291, the Petitioner is entitled to a score of 6 on his response to item number 291. The Petitioner's response to item number 294 was assigned a grade of 6. If graded correctly, the Petitioner's response to item number 294 would have credited him with correct answers to all parts of that item. Under the scoring plan for item number 294, the Petitioner is entitled to a score of 10 on his response to item number 294. The Petitioner's response to item number 295 was assigned a grade of 2. If graded correctly, the Petitioner's response to item number 295 would have credited him with correct answers to all parts of that item. Under the scoring plan for item number 295, the Petitioner is entitled to a score of 10 on his response to item number 295. If the Petitioner's responses to items number 291, 294, and 295 had been correctly graded, he would have received a total of 14 more points than he was given credit for.
Recommendation Based on all of the foregoing it is recommended that a Final Order be entered in this case concluding that the Petitioner is entitled to a grade of 6 points for his response to item number 291, is entitled to a grade of 10 points for his response to item number 294, and is entitled to a grade of 10 points for his response to item number 295, and recalculating the Petitioner's total grade on the examination on the basis of such conclusions. DONE AND ORDERED this 20th day of January, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1999.
Findings Of Fact Petitioner has been employed for several years as Projects Manager for Fred McGilvray, Inc., a large general and mechanical contracting firm. He is licensed by the Construction Industry Licensing Board as a certified mechanical contractor and as a certified general contractor, but he has never been licensed as an electrical contractor in Florida or any other State, or in any county or municipality in Florida. Petitioner submitted to the Board with his application for statewide certification as an electrical contractor, a list of jobs which he supervised in his capacity as Projects Manager for Fred McGilvray, Inc. Petitioner did not obtain any electrical permits for these jobs. All of the electrical work was subcontracted to electrical contractors except for some occasions when the job involved maintenance work that did not require an electrical permit. Under the terms of the electrical subcontracts entered into by petitioner's employer and the electrical subcontractors, the responsibility for the performance of the electrical work vested with the electrical contractor and not petitioner. In addition, the legal responsibility to ensure that the electrical work complied with all applicable local safety codes vested with the electrical contractor. Accordingly, the job functions performed by petitioner are not equivalent to those performed by an electrical contractor.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of B. J. Geissinger be dismissed. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1980. WILLIAM B. THOMAS 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 23rd day of October, 1980. COPIES FURNISHED: Jeffrey C. Coon and Steven M. Robey, Esquires Suite 40 8585 Sunset Drive Miami, Florida 33143 Patricia R. Gleason, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32301
Findings Of Fact Douglas H. Gunter is a 34-year-old applicant for the unlimited electrical contractor's examination. He attended Gulf High School in New Port Richey, Florida, and took classes at Austin Community College in Austin, Texas. His college classes included courses in Business Math, Principles of Management, Principles of Microeconomics, Mathematics of Finance, Principles of Accounting I, Principles of Accounting II, and Individual Income Tax. He earned a total of 21 semester hours in the Austin Community College system. From 1972 to 1975 Mr. Gunter worked as a residential electrician. From 1975 through 1979 he was enlisted in the U.S. Navy. He completed the Navy electronics and basic electricity school, and the aviation electrician's mate school and an aviation electrician organizational maintenance course. From October 1976 through July 1979, he was assigned to the electrical instrument branch of a Naval maintenance department, where he was responsible for performing scheduled and unscheduled maintenance on U.S. Navy aircraft as an aircraft electrician. After leaving the Navy he managed all phases of his family's plumbing business, George Gunter Plumbing, Inc., which is State-certified plumbing contractor #CFC040002, from 1979 to 1983. His management duties included estimating, payroll, handling workers' compensation insurance, taxes and the ordering of supplies for jobs in both residential and commercial plumbing. Mr. Gunter possesses an electrical contractors' license in Palm Beach County, #V-16057, where he has been active as an electrical contractor for approximately three months. He also holds an electrical contractors license in Pasco County which he received in 1984, #3277, but which became inactive soon thereafter. It was briefly reactivated last year. Mr. Gunter has been engaged in electrical work for a number of companies from 1985 through the present. These included such things as the installation of a Switch Gear Computer system and energy management system in a 20,000 square foot office building in Austin, Texas; installation of panel boards and outside lighting and fire alarm system in a restaurant/office complex in Boca Raton, Florida; installation of kitchen equipment, a laundry and boiler room and controls for lighting in a Marriott Hotel; electrical work in a restaurant in Coral Springs, Florida; in a shopping center in Plantation, Florida; at an oil lube center in Margate, Florida; and a commercial jewelry store in Hollywood, Florida. The Board is satisfied that Mr. Gunter has adequate technical or field experience as an electrician (Tr. 28). The denial letter from the Board focused on whether Mr. Gunter had three years of responsible management experience or six years comprehensive, specialized training, education or experience associated with an electrical contracting business.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Electrical Contractors Licensing Board denying the application of Douglas H. Gunter to sit for the examination as an unlimited electrical contractor. RECOMMENDED this 18th day of December, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 18th day of December, 1991. COPIES FURNISHED: Douglas H. Gunter 600 East River Drive Margate, Florida 33063 Clark R. Jennings, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Department of Professional Regulation Electrical Contractors Licensing Board 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner, Edward W. Horsman, filed an application August 14, 1984, pursuant to Chapter 489, Florida Statutes, for certification by examination as an electrical contractor. On October 12, 1984 Respondent denied Petitioner's application on the basis that he lacked sufficient experience in the trade to qualify for the licensure examination. Section 489.521, Fla. Stat., and Rule 21GG-5.02(1), F.A.C. Petitioner filed a timely request for a hearing pursuant to Section 120.57, Fla. Stat. Petitioner has 20 years experience in the electrical construction industry. From 1965-1980 Petitioner was employed by Spaulding Electric Company, an electrical contractor in Detroit, Michigan. While employed by Spaulding, Petitioner worked as a wireman for one and one-half years, a foreman for one and one- half years, a field superintendent for four years, an estimator for one and one-half years, chief estimator for one and one-half years, and as manager of electrical construction for five years. Petitioner's managerial and supervisory experience included supervision of draftsmen in plan preparation, bid estimates, negotiation of contracts, overall supervision of construction, scheduling and purchasing. From 1980-1982 Petitioner was employed by Lastar Electric Company, an electrical contractor in Madison Heights, Michigan. Petitioner's managerial and supervisory experience at Lastar comported with his duties at Spaulding. In December 1982 Petitioner was laid off by Lastar, due to an economic recession which plagued Detroit, Michigan. From December 1982 until February 1984, Petitioner operated his own consulting firm in Rochester, Michigan, providing estimating and project management services for electrical contractors. Business was poor, and few contracts were acquired. In February 1984 Respondent relocated to Englewood, Florida, and undertook his current employment with Baldwin Electric, Inc. Respondent seeks to be licensed as the qualifying agent for Larry's Electric, Inc., a wholly owned subsidiary of Baldwin Electric, Inc.
The Issue Whether Respondent discriminated against Petitioner on the basis of her race and sex, and whether Respondent retaliated against Petitioner for making complaints of discriminatory treatment.
Findings Of Fact Respondent JATC is an apprenticeship program which provides training to persons who desire to become journeymen electricians. JATC is supervised by the United States Department of Labor and a corresponding State of Florida governmental agency. JATC is based in Gainesville, Florida, and is headed by a six-member committee of three contractor representatives appointed by the area's National Electrical Contractors Association and three labor union representatives appointed by the International Brotherhood of Electrical Workers (IBEW), Local 1205. The committee decides disciplinary actions and policy matters involving apprentices. The committee employs a director. JATC's geographical jurisdiction is bounded at Wildwood, Florida, on the south to the St. John's River on the east, cutting across west of Jacksonville through Tallahassee and Panama City, Florida, to the west, and includes three counties in Georgia to the north. An advisory subcommittee deals with routine matters in and for the Tallahassee area, and a similar advisory subcommittee handles routine matters in and for the Panama City area. For matters which are not considered routine and require final action, the subcommittees refer the matters to the full committee at the Gainesville headquarters. JATC does not have actual offices in Tallahassee or Panama City, but utilizes the union halls for the subcommittees' activities. Persons desiring to become journeymen electricians apply to JATC to enter the apprenticeship program and, if selected for the program, are required to enter into an apprenticeship agreement with JATC. In order to complete the program, a person must complete 8,000 hours of on-the-job training, complete 144 hours per year of classroom training, and pass various tests. The apprenticeship program was originally designed as a five-year program, but JATC has condensed the classroom work and the on-the-job training to four years with no summer vacations. JATC is responsible for the selection, placement, and training of the apprentices as work is available. JATC does not employ apprentices. It refers apprentices for employment to participating electrical contractors for positions which provide wages and on-the-job training within JATC's geographical jurisdiction. When a participating contractor needs to hire electrician apprentices, the contractor contacts JATC. In turn, JATC contacts the requested number of apprentices and refers them to the contractor for possible hiring. The decision to hire an apprentice is made by the contractor, who also determines whether to terminate or layoff an apprentice. The duties of the apprentice on the work site are assigned by the contractor and may include such tasks as carrying trash and digging ditches. The policies and standards of JATC do not require an apprentice to be under constant supervision on job sites. Apprentices are provided direct supervision, which allows them the opportunity to have direction from persons who are knowledgeable in the type of work that is being performed by the apprentices. Opportunities for on-the-job training depend on the needs of the contractors. Jobs can last anywhere from two days to four years, and depend on the amount of building construction in the area at any given time. Due to the fluctuation in the number of jobs available in the various areas within JATC's jurisdiction, apprentices have been referred to and have worked on jobs in areas within JATC's geographical jurisdiction that are away from the apprentices' residences. Johnson, a black female, entered into an apprenticeship program with JATC in August 1998. She signed an Apprenticeship Agreement, sometimes referred to as an "Indenture," in which she agreed "diligently and faithfully to perform the work of said trade during the period of apprenticeship, in accordance with the registered standards of [JATC]." The Policy Statements of JATC govern the conduct of the apprentices. Johnson received copies of each Policy Statement in effect during the time that she participated in the apprenticeship program. She signed statements acknowledging that she had read, understood, and would comply with the Policy Statements. The Policy Statements provided: "Violations of J.A.T.C. rules and policy may lead to or result in termination of indenture or other action deemed appropriate by J.A.T.C." Johnson was interviewed and accepted for the first JATC class in Tallahassee. During the interviews of apprentices for the first Tallahassee class, the candidates were specifically asked whether they would be able to travel to other cities for work, away from where they normally resided. During her interview, Johnson did not indicate any problems or difficulty with traveling to work in areas away from her Tallahassee home. On October 16, 1998, Johnson was issued a Notice of Termination from Miller Electric Co. (Miller). She had been employed by Miller on referral from JATC. The reason given on the notice was that Johnson had resigned; however, JATC had actually pulled Johnson away from the job because it understood that Miller was going to terminate Johnson. JATC felt that Johnson had potential as an apprentice so she was referred to another contractor, Raytheon Constructors, Inc. (Raytheon) which had an opening for an apprentice. On March 12, 1999, Raytheon issued a Termination Notice to Johnson, terminating her employment for "failure to meet job site requirement," and indicating that she was not eligible for rehire with Raytheon. Johnson had failed a drug test. Johnson informed JATC of the situation with Raytheon. The Director of JATC advised her to present a clean drug test, which she did. Although the Policy Statements provided that Johnson could be disciplined for being terminated and receiving a "not for rehire," she was not disciplined. She was referred for more job assignments. By letter dated December 17, 1999, Johnson complained to the Director of JATC that she was not being given work when work was available. She requested that JATC force her former employer, Hartsfield Electric, to reemploy her, even though she complained that when she worked for Hartsfield that she was given "the hardest and dirtiest jobs they had." She concluded her letter by stating: "I will do what ever it takes to stay in this program, but I won't leave Tallahassee to do so." Johnson resided in Tallahassee and was unwilling to take assignments outside the Tallahassee area. When the Director of JATC received the December 17, 1999, letter from Johnson, he investigated her allegations, including her work assignments with Hartsfield. He determined that Johnson's assignments were within the duties of an apprentice and, although some of the tasks may have been "crappy work," that was part of being an apprentice. Hartsfield was not satisfied with Johnson's work and was unwilling to rehire her. Johnson received an "unsatisfactory job performance" evaluation from Atkins Electric Co. for the period April 13, 1999, to May 7, 1999. Because of her prior job performance, participating Tallahassee contractors were refusing to hire Johnson. JATC continued to accommodate Johnson's desire not to work outside the Tallahassee area. When a new contractor who did not have previous experience with Johnson would come to Tallahassee, JATC would refer Johnson to that contractor. Apparently Hartsfield changed its position and rehired Johnson at some point, because on May 15, 2000, Hartsfield gave Johnson a Notice of Termination. The notice cited lack of production, the need for constant supervision, and tardiness as the reasons for termination. The notice also indicated that Johnson was not eligible for rehire. The JATC Policy Statements provided that an apprentice who was terminated from a job or received a "not-for-hire" was to appear before the committee to discuss the termination before any disciplinary action would be taken. The Policy Statements also provided that the apprentice would not be reassigned to any job until JATC reviewed the termination. Johnson was noticed to appear before the Tallahassee subcommittee, who referred the termination issue to the committee in Gainesville. Johnson was issued a notice to appear before the Gainesville committee. No disciplinary action was taken against Johnson for the termination. The committee gave her the option of going to another location to find employment and, when work became available in Tallahassee, being sent back to Tallahassee to work. By letter dated August 9, 2000, Hartsfield wrote to the Local Union 1205, requesting that Johnson not be referred to Hartsfield and giving as reasons that Johnson did not follow orders well, was not dependable, and was irresponsible. On November 3, 2000, JATC notified Johnson to appear before the Tallahassee subcommittee for absenteeism from class. The class attendance sheets showed that Johnson had been absent from class three times from August to October 2000. No disciplinary action was taken against Johnson because of her absences. Around November 16, 2000, the Director got Johnson hired by a new participating contractor in Tallahassee. Johnson was terminated by that contractor for having a bad attitude. The contractor would not rehire Johnson. Johnson appeared before the subcommittee and requested that she be allowed to come up with a plan in which she would wire her home and those hours working on her home would be counted towards her required on-the-job training hours. The Director told her to put the plan in writing so that it could be presented to the committee. Johnson failed to prepare a written plan. After being on the job with Miller Electric for 28 days, Johnson received a poor performance evaluation on March 3, 2001. The evaluation indicated that Johnson needed improvement in her work habits, needed constant supervision, stood around and showed little interest in her job, was resentful and uncooperative, and had very little mechanical aptitude. Johnson was noticed to appear before the Tallahassee subcommittee concerning her poor evaluation. The subcommittee referred the issue to the committee in Gainesville. Johnson was notified to appear before the committee in Gainesville, which she did on March 27, 2001. She told the committee that she was getting mixed feelings on what she was expected to do on the job. The committee explained in great detail what was expected of her. Johnson acknowledged that she understood. The committee placed her on one-year probation and advised her in writing that "any further infraction to the policy statement could mean your immediate termination." Johnson filed an appeal of the action placing her on probation. The Director investigated her claims and spoke to anyone he could find on the job site in question. He interviewed the supervisors, who had been on the job with Johnson. Johnson was given the opportunity to provide the committee with the names of witnesses who could support her claim that she should have been given a better evaluation and any other information that she had concerning the performance evaluation. At the April 24, 2001, meeting of the Gainesville committee, the Director advised that he had statements from some of the people he interviewed. Johnson had not supplied the committee with any additional information. Having received no information from Johnson, the committee denied her appeal. On two occasions, Johnson told the Director that she believed the Tallahassee contractors were discriminating against her. On each occasion, the Director investigated her claims, interviewed individuals on the job site, and interviewed Johnson. Based on his investigation, he was unable to conclude that she had been discriminated against. Electricians in North Florida or Tallahassee cannot make a living by limiting their job opportunities to the towns in which they live. The supply of workers is greater than the demand for labor. After Johnson was put on probation, JATC continued to have difficulty finding any contractors in Tallahassee who would hire Johnson. The Director offered her referrals wherever work was available, such as Panama City, Gainesville, and Palatka. She refused the offers, and stated that she would not leave Tallahassee. Around August 7, 2001, JATC committee member and assistant business manager for IBEW Local 1205, Tommy Ward, attempted to contact Johnson by telephone to provide her referrals for on-the-job training work. He continued to attempt to contact her two times by telephone during the following week. Several referrals for jobs were available at that time. On August 13, 2001, Mr. Ward learned that Johnson had changed and updated her address and telephone number. He attempted twice to contact her using her new telephone number. He was unsuccessful, but he left messages for her to contact him. Johnson failed to return Mr. Ward's calls, so he sent her a certified letter dated August 15, 2001, advising her that he had been trying to reach her. She signed for the receipt of the letter on August 18, 2001. He continued to attempt to contact her by telephone after he sent the letter. From August 9, 2001, through September 5, 2001, Mr. Ward attempted to contact Johnson at least ten times, but was unsuccessful. The Policy Statements require that one unexcused absence from class in any semester may result in apprentices being terminated from the program. Johnson had been absent from class two times in August 2001. A certified letter dated September 10, 2001, was sent to Johnson by JATC notifying her that action would be taken at the September 25, 2001, Gainesville committee meeting to terminate her from her indenture with the apprenticeship program for failure to attend classroom training and failure to respond to work assignments. The letter was unclaimed, and the postal service returned the letter to JATC after the September 25, 2001, meeting. The committee was advised that Johnson had called the Interim Apprenticeship Director the day of the meeting, asking for the telephone number for Mr. Ward. Unaware that Johnson had not received the notice of the committee meeting, the committee voted to terminate Johnson from the apprenticeship program. By letter dated October 23, 2001, JATC notified Johnson that the committee had voted to terminate her from the program. The Policy Statements of JATC provide procedures for appealing actions of the committee. The procedure is as follows: APPEAL PROCEDURE If an apprentice feels that he or she has been treated unfairly or canceled without due course, he or she may file an appeal within ten (10) days of receipt of notice of the committee's action. This complaint shall be in writing and signed by the apprentice and shall include his/her name. No reinstatement shall be considered unless a written appeal is received within ten (10) days after receiving cancellation notice from the J.A.T.C. The Policy Statements also require that when an apprentice requests to appear before the committee, the apprentice has the responsibility to make certain that he or she is available at the time assigned by the committee. Johnson appealed the committee's decision to terminate her from the program. By letter dated December 21, 2001, JATC notified Johnson that her appeal would be heard at the Gainesville committee meeting scheduled for January 22, 2002. Johnson advised the committee that she would not be able to attend the January 22 meeting because her house had burned. JATC notified Johnson by letter dated February 13, 2002, that she could present her appeal to the committee at its meeting on February 26, 2002. Johnson received notice of the meeting, but failed to appear at the February meeting. The committee notified her that it would consider her appeal at the March 26, 2002, meeting. Johnson received notice of the meeting, but failed to attend the March meeting. JATC took no further action on her appeal after her failure to appear. Johnson claims that the younger white males in the program were treated differently than she. The only person that she could recall was Mark Hoffman, whom she asserted was absent more than she and was not disciplined for his absences. As revealed by the records of JATC, Mr. Hoffman was terminated from the program in December 2001 for a failing average for the year and for absenteeism. At least three males had been terminated from the program for absenteeism before Johnson was terminated. Johnson also claims that she was treated differently than the younger white males on the job site because she was given tasks such as cleaning up the work site and digging ditches. All apprentices are given tasks such as cleaning up the work site and digging ditches. It is part of the job. When a person progresses from an apprentice to a journeyman, the person is still expected to do work such as cleaning up the site and digging ditches. The evidence does not support Johnson's claim that she was treated differently in the duties that she was being given on the work site. Johnson was involved in an automobile accident in September 1999. As a result, she suffered a torn rotator cuff, which required surgical repair. Johnson brought suit against the other driver in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Carol Johnson vs. Kone, Inc., and Kirk Kyle Pope, Case No. 01-CA-2412. Her deposition was taken in that case on June 10, 2002. In her deposition, Johnson was asked the following questions and gave the following answers: Q. And I am asking you, okay, do you think, do you think that you would be an electrician today if you didn't have the shoulder problem? A. Yes. Q. Okay, and why do you say that? A. Because eventually I will have to find another career. I have waited all my life to do work in construction. I finally found a job that I like and now I can't, I wouldn't be able to do it much longer. Q. Well, what, why don't you think you are going to be able to continue in your chosen field as an electrician or apprentice or helper? A. Because the pills, the pain pills I take they make me sleepy. They make me tired. I can, I can't get up and do like I used to, so eventually I will have to find a desk job. I won't even probably be able to go back to agriculture because you have to be able to work in the field. I will have to find another career. Part of the duties of an electrician, apprentice, or journeyman, includes being able to lift and carry over 50 pounds and having good motion ability. Johnson admits that during her apprenticeship and as of the final hearing that she had a physical disability that affected her ability to perform in the apprenticeship program. She stated that she would be slowed down in her work, and she would not be able to pick up and handle heavy things like she could do prior to her accident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Gainesville Electrical Joint Apprenticeship Training Committee did not discriminate against Carol D. Johnson based on race or sex and did not retaliate against her for making complaints of discrimination, dismissing her petition, and denying Gainesville Electrical Joint Apprenticeship Training Committee's request for attorney fees. DONE AND ENTERED this 12th day of March, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Paul A. Donnelly, Esquire Donnelly & Gross Post Office Box 1308 Gainesville, Florida 32602-1308 Laura A. Gross, Esquire Donnelly & Gross Post Office Box 1308 Gainesville, Florida 32602-1308 Carol D. Johnson 1420 North Meridian Road, Suite 108 Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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
