The Issue The issue presented is whether Petitioner's application to qualify two additional business entities should be granted.
Findings Of Fact Petitioner, David Rheaume, has been an electrician since about 1960. Petitioner is a certified electrical contractor, holding Florida license number EC 13003139. Petitioner currently serves as the primary qualifier for two companies, David's Electric Service, Inc. (David's Electric), in Fort Myers, and Primary Electric of Southwest Florida, Inc. (Primary Electric), in Cape Coral. As the primary qualifier for David's Electric and Primary Electric, Petitioner is responsible for the supervision of all operations of the business organization, for all field work at all sites, and for financial matters, both for the organization in general and for each specific job. § 489.522(1)(a), Fla. Stat. (2006). David's Electric is wholly owned and operated by Petitioner. He is the sole officer and employee. On average, Petitioner works three-to-four hours per day, five or six days per week, doing mostly service work and upgrades. He gets most of his work from the local pennysaver-type advertising circular, and his schedule depends on the number of calls he receives from customers. He may work for six hours on one day, and not at all on the next. Petitioner considers himself semi-retired, and no longer undertakes new home installations. Petitioner is able to make his own flexible schedule as the owner/operator of David's Electric, and believes that he will be able to supervise the operations of the additional entities for which he seeks to act as qualifier. Primary Electric performs electrical service work and the wiring of newly constructed houses. Petitioner spends a "couple hours a week at the most," supervising the electrical contracting work of Primary Electric. The owner/operator of Primary Electric calls Petitioner when a job is ready for inspection. Petitioner then goes to the job site and checks to make sure the job has been done properly before the county inspector arrives. The owner/operator consults Petitioner if he has a problem understanding the blueprints on a job. The staff of Primary Electric consists of the owner/operator and two helpers. Petitioner is officially the vice president and owns ten percent of the company. He serves in a consulting capacity, and performs no physical work for Primary Electric. At the hearing, Petitioner identified the owner/operator of Primary Electric as "Don," and could not, with confidence, recall "Don's" surname. Don supervises the business on a day-to-day basis. Petitioner knew that Don's wife "signs all the checks," but was not certain whether she has an official position in the company. The checkbook and financial records are forwarded to the office of Petitioner's CPA, where Petitioner checks them. Don, the owner/operator of Primary Electric, is not a licensed electrical contractor. Petitioner allows Don to hire and supervise the helpers who work on Primary Electric's job site. Petitioner readily conceded that he knows nothing about the hiring or qualifications of the helpers, and that he relies on Don to address any problems with faulty work performed by the helpers. Primary Electric has pulled permits and performed electrical contracting jobs without Petitioner's prior knowledge. Petitioner testified that he allowed Don to go to local building departments and pull permits for electrical contracting jobs without prior consultation with Petitioner, because "I have that much faith in him." Petitioner acknowledged that on some smaller jobs, such as additions or service work, the owner/operator of Primary Electric has finished the jobs and gone through final inspections without ever notifying him. In response, Petitioner told Don to "at least call me." Petitioner applied to serve as the primary qualifier for Dolphin Electric of SW Florida, Inc. (Dolphin Electric), a start-up company based in Cape Coral. Vincent Sica is the president of Dolphin Electric, and Petitioner is the vice president and ten percent owner. Mr. Sica is a friend of Petitioner, and formerly worked for Petitioner at David's Electric. Mr. Sica was denied an electrical contractor's license by the Board, then asked Petitioner to serve as his qualifier, thereby allowing Dolphin Electric to work in the field of electrical contracting. Dolphin Electric, if approved as an additional business under Petitioner's license, would operate as an electrical contracting business focusing primarily on wiring new custom houses built by Mr. Sica's brother, who is a general contractor. Mr. Sica and his son would perform the work. Petitioner will perform no physical work for Dolphin Electric. Petitioner intends to supervise Dolphin Electric in the same manner that he supervises Primary Electric, including allowing Mr. Sica to pull permits for electrical jobs without first consulting Petitioner. According to Petitioner, Mr. Sica was an electrician in New Jersey and is very qualified. Petitioner stated that he would likely supervise Dolphin Electric a little more closely, if only, because he and Mr. Sica are friends and spend a lot of time together. Petitioner applied to serve as the primary qualifier for Mill Electrical Contractors, Inc. (Mill Electric), a start- up company based in Fort Myers. Terry Gaschk is the president of Mill Electric, and Petitioner is the vice president and ten percent owner. Mr. Gaschk is a friend of Petitioner, and worked for Petitioner at David's Electric during a busy time. Although he has only known Mr. Gaschk for one year, Petitioner testified that Mr. Gaschk is "like a brother" to him and is a better electrician than Petitioner. When Mr. Gaschk wanted to start his own company, Petitioner was willing to serve as his qualifier. Mill Electric, if approved as an additional business under Petitioner's license, would probably operate as an electrical contracting business focusing primarily on wiring newly constructed houses. Petitioner was not sure of Mr. Gaschk's intentions, because of the current softness of the residential construction business. Petitioner guessed that Mill Electric would stay a one-man operation doing service jobs until the market improves. Petitioner intends to supervise Mill Electric in the same manner that he supervises Primary Electric, including allowing Mr. Gaschk to pull permits for electrical jobs without first consulting Petitioner. Petitioner did not demonstrate intent to adequately supervise the operations of the proposed additional entities, Dolphin Electric and Mill Electric. At Petitioner's application request hearing, the Board's chief concern was the appearance that Petitioner was engaged in a "license selling" scheme with his friends. At the de novo hearing before the undersigned, Petitioner did little to put this concern to rest. Petitioner's intent is to continue working part-time for his own company, and to allow his friends to run the day-to- day operations of the two start-up companies, including the hiring and supervision of employees, the pulling of permits for electrical work, and the performance of that work without the direct supervision of a certified electrical contractor. In general, Petitioner would be consulted when there is a problem with the work, or when his presence is required for an inspection. The undersigned does not find that Petitioner had any conscious bad intentions in making his applications. Petitioner sincerely believes that Mr. Sica and Mr. Gaschk are at least as proficient in the field as is he, and is confident enough, in his opinion, to risk his license on their behalf. However, Petitioner's casual manner of supervising the work of his friends, coupled with the sheer volume of supervisory work that he proposed to undertake for a total of three companies plus his own, caused reasonable doubts in the mind of the Board. Unfortunately, Petitioner was unable to dispel those doubts in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: A final order be entered denying Petitioner's applications to qualify Dolphin Electric of SW Florida, Inc., and Mill Electrical Contractors, Inc. as additional business entities. DONE AND ENTERED this 8th day of March, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of March, 2007. COPIES FURNISHED: Reginald D. Dixon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Howard Andrew Swett, Esquire Knott, Consoer, Ebelini, Hart & Swett, P.A. 1625 Hendry Street, Suite 301 Fort Myers, Florida 33901 Anthony B. Spivey, Executive Director Electrical Contractors' Licensing Board 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that all charges against Floyd E. Williams be DISMISSED. DONE and RECOMMENDED this 9th day of June, 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 9th day of June, 1983.
The Issue The issue is whether Respondents committed the acts alleged in the Administrative Complaint, and if so, what discipline should be imposed.
Findings Of Fact Richard and Clara Marron have an in-ground, fiberglass pool at their home in Zephyrhills. The pool is approximately 25 years old. In December 2005, the Marrons' pool service company told them that the pool had a leak. The pool service company referred the Marrons to Coral Isle Pools and Spas (Coral Isle) in Zephyrhills. Coral Isle was owned and operated by Richard Delafield--the father of Respondent Scott Delafield--until his death on January 31, 2006. Richard Delafield was a registered building contractor, registered pool/spa contractor, registered plumbing contactor, and the qualifying agent for Coral Isle. On or about March 29, 2006, the Marrons went into Coral Isle's store and talked to Scott Delafield about fixing the leak in their pool.2 Mr. Delafield determined that the pool was leaking around the underwater light fixture and that the light needed to be replaced. He agreed to perform the necessary repairs for $858.55. The invoice prepared by Mr. Delafield described the work to be performed as follows: "dig under deck redue [sic] electrical conduit" and "labor to install light and do diagnostic on transformer." On May 6, 2006, the Marrons made an initial payment of $250.00 to Coral Isle. On May 15, 2006, Mr. Delafield performed the work on the Marrons' pool. Mr. Delafield did not obtain a permit from Pasco County before commencing the work on the Marrons' pool.3 The work was done in four stages. First, a trench was dug under the pool deck to provide access to the back of the light fixture. Second, the existing light was removed and replaced with a new light. Third, the wire for the new light was routed through PVC conduit pipe Mr. Delafield laid in the trench. Fourth, Mr. Delafield connected the wire to the "junction box"4 adjacent to the pool deck. The trench under the pool deck was dug by Carl Lind or Mark Pickett, not Mr. Delafield. Mr. Lind and Mr. Pickett were subcontractors of Coral Isle. Mr. Delafield removed the existing light by removing the screws on the front of the light fixture. He then installed the new light and ran the wire for the light through new PVC conduit pipe to the junction box. On May 17, 2006, the Marrons paid the balance of the invoice, $608.55. Mr. Delafield did not perform any work on the higher voltage electrical wires between the junction box and the breaker box at the house. Mr. Delafield did not drain the pool to replace the light. He was able to access the light fixture from the front because the water level in the pool was below the fixture as a result of the leak in the pool. At some point after Mr. Delafield completed his work on the pool light, Mr. Lind and/or Mr. Pickett drained the Marrons' pool in order to "patch" the fiberglass bottom of the pool.5 The light installed by Mr. Delafield works, and the pool no longer leaks. Indeed, the Marrons acknowledged in their testimony at the final hearing that the work done by Mr. Delafield fixed the leak and that the pool now "holds water." Mr. Delafield and Coral Isle were not licensed, registered, or certified to perform electrical contracting work at the time Mr. Delafield performed the work on the Marrons' pool light. In April 2006, the Department issued temporary emergency certifications to Mr. Delafield as a registered building contractor, registered pool/spa contractor, and registered plumbing contractor. The certifications authorized Mr. Delafield to complete Coral Isle's "projects in progress" at the time of Richard Delafield's death. The certifications did not authorize Mr. Delafield to enter into new contracts, nor did they authorize him to perform electrical contracting work. The Marrons' project was not in progress at the time of Richard Delafield's death. The agreement to perform the work was not entered into until several months after his death. In June 2006, the Marrons filed an unlicensed activity complaint against Mr. Delafield and Coral Isle. The Department incurred costs of $206.69 in its investigation of the complaint, not including costs associated with an attorney's time. In February 2007, the Marrons made a claim for $150,000 against Richard Delafield's estate in which they alleged that their pool and deck were "rendered useless" due to the negligence of Coral Isle. They also filed a civil suit against Mr. Delafield and others for damage to their pool. The Marrons did not pursue the claim against the estate, but the civil action is still pending. Coral Isle is no longer in business. Mr. Delafield testified that he planned to pursue licensure so that he could keep the business operating after his father's death, but that he never did so. Mr. Delafield was unemployed at the time of the final hearing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order that: Finds Mr. Delafield guilty of unlicensed electrical contracting in violation of Sections 455.228 and 489.531, Florida Statutes; Imposes an administrative fine of $1,000 on Mr. Delafield; and Requires Mr. Delafield to pay the Department's investigative costs of $206.69. DONE AND ENTERED this 25th day of February, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 25th day of February, 2008.
The Issue Whether the Respondent failed to provide proof of workers' compensation coverage or exemption, and proof of having completed 14 hours of approved continuing education in response to an audit conducted by the Electrical Contractors Licensing Board for the biennium commencing September 1, 1996, and terminating on August 31, 1998, in violation of Subsection 489.533(1)(o), Florida Statutes, by violating Subsections 489.515(3) and 489.517(3), Florida Statutes, and Rule 61G6- 9.011, Florida Administrative Code, as alleged in the Amended Administrative Complaint.
Findings Of Fact The Petitioner is the State of Florida, Department of Business and Professional Regulation (DBPR), the state agency charged with regulating the practice of electrical contracting in Florida and those licensed under Chapter 489, Florida Statutes, pursuant to Section 20.165, and Chapter 455, Florida Statutes. The Respondent is, and has been at all times material to the allegations in the Amended Administrative Complaint, an electrical contractor licensed by the Electrical Contractors Licensing Board. From 1987 until 2000, the Respondent was a registered electrical contractor, holding license number ER 0010816. Since August of 2000 the Respondent has been a certified electrical contractor holding license number EC 0002356. The Respondent's practice pursuant to his registered license was a prerequisite to issuance of his certified license. All insurance and continuing education requirements for renewal of a license issued by the ECLB are set forth in Sections 489.515 and 489.517, Florida Statutes, as well as Rule 61G6-9.004, Florida Administrative Code, and are identical for certified and registered electrical contractors. In March of 1999 the ECLB conducted a random audit of the insurance and continuing education requirements established in Rule 61G6-9.004, Florida Administrative Code, for the biennium commencing September 1, 1996, and terminating August 31, 1998. The Respondent was one of the licensees randomly chosen for this audit. In response to the initial audit letter sent to the Respondent on March 17, 1999, the Respondent submitted insurance and continuing education documentation. This documentation reflects: no evidence of workers' compensation coverage or exemption for the audit period; no evidence of approved continuing education for the audit period; and no evidence of required liability insurance for the audit period. The continuing education documentation submitted by the Respondent was for the prior biennium, in February 1996. On July 19, 1999, the ECLB forwarded the Respondent a follow-up letter, indicating that he was still lacking the documents enumerated in Finding of Fact Number 5. In response to this letter, the Respondent submitted documentation of the required liability insurance and of workers' compensation for May 1, 1997 through June 22, 1999. At hearing, the Respondent produced a document similar to those previously provided to the DBPR documenting his workmen's compensation insurance from March 1, 1995 to May 1, 1997. The date of this document was the same as the date on the materials previously furnished to DBPR. The Respondent testified that his insurance agent had faxed the requested documents to DBPR and sent copies to him. He received all of the documents substantiating his insurance from May 1, 1997 until June 22, 1999. His agent presumably forwarded or faxed the same documents to DBPR. DBPR produced all the documents except the one for the period of March 1, 1995 until May 1, 1997. The Respondent provided enough information to raise a genuine question whether this document was lost by DBPR. It is concluded that it is as likely DBPR lost the record as it is the record was not sent. There was no additional documentation of the required continuing education submitted at hearing. Subsequent to the completion of the audit, the ECLB initiated a complaint with the Bureau of Consumer Services at DBPR. This complaint alleges that the Respondent failed to document required workers' compensation coverage or exemption for the entire audit period and failed to document required continuing education within the audit period. The Respondent was initially issued citations for resolution of the alleged violations herein. Each of these citations provided for a $500 administrative fine. The continuing education violation was documented as DBPR case number 2000-08338 and the workers' compensation violation was documented as 2000-05654. The Respondent chose to dispute these citations, and as a result, this matter was handled pursuant to the provisions of Section 455.225, Florida Statutes. The Respondent has failed to document completion of hours of board approved continuing education between September 1, 1996 and August 31, 1998. The Respondent failed to obtain any board approved continuing education between September 1, 1996 and August 31, 1998. In DBPR case number 2000-08338, the Petitioner incurred non-legal costs in the amount of $31.70. In DBPR case number 2000-05654, the Petitioner incurred non-legal costs in the amount of $42.47. However, this cost may not be recovered.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered imposing an administrative fine of $500 against the Respondent for Count II of the Amended Administrative Complaint. It is further recommended that the Respondent be required to pay the non-legal costs incurred by the Petitioner in both agency cases totaling $31.70. DONE AND ENTERED this 14th day of September, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2001. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 David Karably Post Office Box 12 Earleton, Florida 32631 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The primary issue for determination in this case is whether Respondent, Bruce P. Boston, engaged in the unlicensed practice of electrical contracting in the State of Florida without being certified or registered in violation of Chapter 489, Part II of the Florida Statutes; and secondarily, if Respondent committed that violation, what penalty should be imposed?
Findings Of Fact The Department of Business and Professional Regulation (Petitioner) is a state agency charged with the duty and responsibility of regulating the practice of electrical contracting in the State of Florida. Respondent's address is 18204 Southwest 200 Street, Archer, Florida 32618. At no time material hereto was Respondent certified or registered in the State of Florida to engage in the practice of electrical contracting or to perform electrical contracting work. Mrs. Dawn Wingert is the owner of the residence located at what is currently designated as 16675 Southwest 143rd Avenue, Archer, Florida. Mrs. Wingert, as lawful owner, had the authority to enter contracts regarding the residence. The Wingert residence was previously known as 110 Park Avenue, Archer, Florida, prior to the assignment of the current address. Wingert entered into a contract with Respondent to perform construction of a carport and perform electrical contracting work at Wingert’s residence subsequent to assignment of the address of 110 Park Avenue, Archer, Florida. Respondent received compensation for the contracted work directly from Wingert via personal check, which Respondent then cashed. Terry Vargas, a licensed electrical contractor having been issued license number ER 13012448, was subsequently contacted by Respondent to perform the electrical contracting work at the Wingert residence. Vargas installed an electrical outlet on the back porch, put a flood light on the back porch, moved the switch board to a more convenient location, and put a security light in the front of Wingert’s residence. All work required electrical fixtures to be permanently affixed and become a permanent part of the structure of the Wingert residence. Although Vargas completed the electrical contracting work at the Wingert residence, Wingert paid the Respondent for the services because the work was contracted for through Respondent. At no time pertinent to this matter did Terry Vargas contract with Wingert to complete the electrical services enumerated above. After he completed the work at Wingert’s residence, Vargas invoiced Respondent for the electrical contracting work. Respondent, however, refused to pay Vargas for the electrical contracting work performed, despite having received compensation for the work from Wingert.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Petitioner enter a final order, in accordance with Section 489.533(2)(c), Florida Statutes, requiring that Respondent pay an administrative fine in the amount of $5,000.00 to the Department of Business and Professional Regulation. DONE AND ENTERED this 20th day of February, 2007, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2007. COPIES FURNISHED: Bruce P. Boston Post Office Box 331 Williston, Florida 32696 Drew F. Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent committed the acts alleged in the Administrative Complaints and, if so, what penalty is appropriate.
Findings Of Fact Respondent provides “handyman” services through BK and H Corporation. Respondent is not licensed by the Department as a contractor or an electrical contractor, and his corporation is not licensed by or registered with the Department in those fields. Respondent’s corporation has an occupational license from Collier County. The classification listed on the license is “handyman repair service (no contracting).” The occupational license includes the notation “HIGHLY RESTRICTED” in bold type. The license also states that it “is not a certification that the licensee is qualified” and that it “does not permit the licensee to violate any existing regulatory zoning laws of the state, county or cities nor does it exempt the licensee from any other license or permits that may be required by law.” On or about April 11, 2005, Respondent presented a written “Estimate” to Robert Brown for a variety of work that Mr. Brown wanted done to his home. The Estimate was on the letterhead of Respondent’s corporation. Respondent testified that the Estimate was not a proposal for work to be performed, but rather was an itemized list of the work that he and others hired by Mr. Brown had already performed and that Mr. Brown had already paid for. Respondent’s testimony regarding the purpose of the Estimate was not credible. First, if, as Respondent claims, the Estimate was intended to be an itemization of work that had already been performed and that Mr. Brown had already paid for, there would have been no reason for Mr. Brown to pay additional money to Respondent after April 11, 2005, as he did (see Findings of Fact 12 and 13), and there would also have been no reason for Mr. Brown to execute a power of attorney after that date to give Respondent authority to “pull” building permits on Mr. Brown’s behalf (see Findings of Fact 15 and 16). Second, Respondent’s characterization of the Estimate is inconsistent with that of his fiancée, Kimberly Frye, who credibly testified that she prepared the document “based on some handwritten notes after Mr. Brown and [Respondent] first initiated [sic] at the home, and they made a list of items that Mr. Brown solicited from [Respondent] to do services.”1 The more persuasive evidence clearly and convincingly establishes that the Estimate was a proposal by Respondent to perform the work listed on the Estimate at Mr. Brown’s home for compensation. The work listed on the Estimate included electrical work (e.g., installation of a 200 Amp service outlet box and two lights in the front yard); structural work (e.g., repairs to Mr. Brown’s roof and the removal and replacement of a pool deck); and other miscellaneous remodeling work inside and around Mr. Brown’s home. The price listed on the Estimate was $8,500. That amount did not include the cost of materials, which according to the Estimate, were to be paid for by Mr. Brown. On April 25, 2005, Mr. Brown paid Respondent $2,000 in cash “toward labor” and $500 in cash “toward materials.” Mr. Brown paid Respondent an additional $2,000 in cash on May 15, 2005, and another $2,000 by check on June 16, 2005. Respondent acknowledged receiving $6,000 from Mr. Brown related to the work listed on the Estimate.2 Respondent claimed that he was only serving as a conduit for the money and that he paid the money to other people that Mr. Brown had hired to perform work on his home at the same time Respondent was working there. Respondent did not present any evidence to corroborate this self-serving testimony, and it is not found credible. On April 25, 2005, Mr. Brown executed a document titled “Specific Power of Attorney for Collier County and City of Naples.” The document purports to give Respondent “power of [Mr. Brown’s] signature for any and all necessary permits, inspections and permit pick up” related to the work on Mr. Brown’s home. According to Respondent, the document was prepared and given to him by Mr. Brown so that he could “pull” owner-builder permits from the Collier County and/or the City of Naples on Mr. Brown’s behalf. An owner-builder permit allows the work to be performed by or under the direct onsite supervision of the owner of the building. It does not allow the work to be delegated by the owner (through a power of attorney or otherwise) to an unlicensed contractor, such as Respondent. Mr. Brown testified that he asked Respondent whether he was a licensed general contractor and Respondent told him that he was. Respondent testified that he told Mr. Brown on several occasions that he was not a licensed contractor. Respondent’s testimony was corroborated by Ms. Frye. Mr. Brown’s testimony on this issue was not credible, and it is more likely than not based upon the totality of the circumstances -- cash payments, preparation of the power of attorney, Mr. Brown’s overall demeanor while testifying, etc. -- that Mr. Brown knew, or had reason to believe, that Respondent was not a licensed contractor. Respondent testified that the only work that he personally performed at Mr. Brown’s house was the installation of flooring, drywall, and closet doors. He claimed that the other work listed on the Estimate, including the electrical work, was performed by other persons hired by Mr. Brown. Respondent denied that he was responsible for supervising the other persons that he contends were working on Mr. Brown’s home, although he testified that Mr. Brown gave him money to pay those workers. Respondent did not identify any of the other workers who, according to him, performed work on Mr. Brown’s home and that he allegedly paid on Mr. Brown’s behalf. Mr. Brown was at work while Respondent was working on his home. He did not provide direct on-site supervision of Respondent. Mr. Brown did not observe other persons working with Respondent on his home, except for one occasion that Respondent had a “helper” with him. The identity of that person, and the work that he or she performed, is unknown. Mr. Brown did not personally see Respondent performing all of the work listed on the Estimate. He did, however, see Respondent working on the water heater, an electrical switch in the laundry room, and the ceiling fans. Respondent’s testimony regarding the limited scope of the work that he performed on Mr. Brown’s home was not credible or persuasive, and the totality of the evidence clearly and convincingly establishes that Respondent offered to perform and did perform contracting and electrical contracting work at Mr. Brown’s home. At some point after Respondent stopped working at Mr. Brown’s home, Mr. Brown was advised by an electrical contractor that some of the electrical work needed to be redone because it posed a fire risk. Mr. Brown had the work redone by an electrical contractor, which cost him $2,400. He was also required to pay $400 to Florida Power and Light for some reason. Thereafter, Mr. Brown filed complaints against Respondent with the Department and with Collier County. After investigating the complaints, Collier County issued two citations to Respondent and imposed fines totaling $900. The fines were not based upon the performance of unlicensed contracting or electrical contracting, but rather were based upon Respondent advertising his ability to provide those services through the Estimate. Respondent did not contest the fines imposed by Collier County. He paid the fines in full. The Department provided its investigative file related to this incident to the State Attorney’s Office (SAO) in Collier County, as it was required to do by Section 455.2277, Florida Statutes. The SAO makes the decision whether to file criminal charges against an individual for unlicensed contracting. The Department is not involved in that decision. The SAO brought criminal charges against Respondent for the unlicensed contracting that he performed at Mr. Brown’s home, but the case was “nol prossed” by the SAO. Respondent is in the process of applying for a general contractor’s license from the Construction Industry Licensing Board. He testified that he took and passed the licensing exam on August 16, 2006. The Department incurred investigative costs of $296.99 related to Complaint No. 2005-042280, which is DOAH Case No. 06-1929. The Department incurred investigative costs of $307.45 related to Complaint No. 2005-042281, which is DOAH Case No. 06-1934.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: finds Respondent guilty of unlicensed contracting in violation of Sections 489.127(1)(f) and 489.13, Florida Statutes, and imposes an administrative fine of $1,000, with $500 payable upon entry of the final order and the other $500 payable one year from that date unless Respondent provides satisfactory evidence to the Department that he obtained a state contractor’s license within that period; finds Respondent guilty of unlicensed electrical contracting in violation of Sections 455.228 and 455.531, Florida Statutes, and imposes an administrative fine of $1,000; and requires Respondent to pay the Department’s investigative costs of $604.44. DONE AND ENTERED this 9th day of October, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 9th day of October, 2006.
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
