The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the charged violations of Section 489.127(1)(f), Florida Statutes (2006), and Section 489.531(1)(a), Florida Statutes (2006), and if so, what penalty, if any, is warranted.
Findings Of Fact The Petitioner is an Agency of the State of Florida charged with regulating the practice of contracting and the licensure of those engaged in the practice of contracting of all types, in accordance with Section 20.165, Florida Statutes, as well as Chapters 455 and 489, Florida Statutes. The Respondent engages in re-modeling and other construction-related work both as his own business and employment by a certified general contractor. This case arose upon a Complaint filed with the Petitioner Agency by Mr. Kenneth Hatin. The Complaint asserted his belief that the Respondent had engaged in a contract to construct an addition on his home, and after being paid substantial sums of money, had wrongfully left the job and never finished it. The residence in question is co-owned by Mr. Hatin and his fiancée, Ms. Beverly White. Ms. White's first cousin is Ms. Julie Crawley. Ms. Crawley is the Respondent's fiancée. Mr. Hatin and the Respondent were introduced by Ms. Crawley and Ms. White. Mr. Hatin and the Respondent thus met socially and as they got to know each other discussed Mr. Hatin's desire to have an addition placed on his home. The addition consisted of a pool enclosure to be constructed on his property located at 33 Botany Lane, Palm Coast, Florida. Mr. Hatin expressed the desire to have the Respondent assist him in constructing the pool enclosure. The Respondent agreed to do so. The Respondent is employed by his brother, who is a Florida-Licensed General Contractor, but neither the Respondent nor his business, JR. Wittmer's Remodeling, Inc., are licensed or certified to engage in contracting or electrical contracting. In accordance with his agreement with Mr. Hatin, the Respondent provided labor and assistance with the renovation project, including digging ditches, picking-up supplies and being present at the work site. In addition to the Respondent, other friends and family members of the protagonists assisted with the project, including the Respondent's son, Ms. Crawley's son, Mr. Hatin's employer, Ms. White's brother-in-law, and Mr. Hatin himself. This was, in essence, a joint family/friends cooperative construction project. Over the course of approximately five months during the construction effort, Mr. Hatin wrote checks to the Respondent in the total amount of $30,800.00. All contractors or workmen on the job were paid and no liens were placed on Mr. Hatin's property. The checks written were for the materials purchased and labor performed by tradesmen or sub-contractors engaged by the Respondent and Mr. Hatin for various aspects of the job such as roofing, tile or block laying, etc. The Respondent received no fee or profit in addition to the amounts paid to the material suppliers, contractors, and laborers on the job. It is not entirely clear from the record who prepared the contract in evidence as Petitioner's Exhibit four, or the document that the parties treated as a contract. It is not entirely clear who actually signed it, but the document was drafted relating to the work to be done on Mr. Hatin's home (the contract). Mr. Hatin maintained that the Respondent prepared and signed the contract. Ms. Crawley testified that the contract was actually prepared by herself and Ms. White (for "tax purposes"). It is inferred that this means that the contract was prepared to provide some written evidence of the amount expended on the addition to the home, probably in order to raise the cost basis in the home to reduce capital gains tax liability potential at such time as the home might be sold. The term "tax purposes" might mean other issues or consequences not of record in this case, although it has not been proven that the contract was prepared for a fraudulent purpose. Ms. Crawley testified that the Respondent did not actually sign the document himself but that she signed it for him. What was undisputed was that there were hand-written changes made to the contract so as to include exhaust fans, ceiling fans, sun tunnels, a bathroom door and outside electrical lighting. Although there was a change to the contract for this additional scope of work, there was no increase in the amounts to be paid by Mr. Hatin for such work. After the project was commenced and the addition was partially built, Mr. Hatin and Ms. White were involved in a serious motorcycle accident. Work was stopped on the project for a period of approximately seven weeks, with Mr. Hatin's acquiescence, while Ms. White convalesced. The Respondent, during this time, dedicated all of his time to his regular job and other work commitments. It was apparently his understanding, expressed in Ms. Crawley's testimony, that, due to injuries he received in the accident and more particularly the more serious injuries received by his fiancée, that Mr. Hatin was not focused on the project at that time, but let it lapse until the medical emergency was past. After approximately seven weeks of inactivity Mr. Hatin contacted the Respondent requesting that he begin work on the project again. A meeting was set up between Mr. Hatin and the Respondent. The Respondent however, was unable to attend the meeting with Mr. Hatin that day, tried to re-schedule and a dispute arose between the two. Additionally, family disputes over money and interpersonal relationships were on- going at this time leading to a lack of communication and a further dispute between Mr. Hatin, Ms. White, the Respondent, and Ms. Crawley. A threat of physical harm was directed at the Respondent by Mr. Hatin (he threatened to put out the Respondent's "one good eye" if he came on the subject property again). Because of this, the Respondent elected not to return to the project. Inferentially, at that point the process of filing the subject complaint soon ensued.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Administrative Complaint filed herein be dismissed. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 12th day of June, 2007. COPIES FURNISHED: Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 E. Renee Alsobrook, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Garvin B. Bowden, Esquire Gardner, Wadsworth, Duggar, Bist & Wiener, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether 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
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 central issue in this case is whether Petitioner's application to take the electrical contractors' examination should be approved or denied.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner filed an application for electrical contractor's examination on October 23, 1987. The type of examination sought by Petitioner was electrical contractor unlimited and the business for which he sought qualification was M.G.I.-Morgan Group, Inc. Question 14 of the application provided: You must show three(3) years experience that shows that you have designed, planned, laid- out and directly supervised electrical construction activities and the installing of electrical components. Unless you are applying for a specialty exam, a substantial part of your work supervised must be commercial and 3-phase service. For each employer listed, you must submit a list of jobs that you supervised electrical construction activities, ON FORM OA-I Petitioner specializes in the design and installation of generator sets. Approximately 99 percent of his business is commercial or 3-phase. Petitioner's experience does not include electrical construction away from the power source. Petitioner's company designs and installs an alternate power source to supplement a structure's main electrical source. During power outages, the alternate power source (the generator) becomes the primary electrical power for the facility. The wiring or construction away from the generator is not done by Petitioner. Petitioner installs the switches and wiring that are necessary to assure a prompt delivery of power from the generator during an outage. This experience exceeds three years. The work experience described in paragraph 4 is the type Petitioner intends to continue if licensed; however, the license requested would authorize Petitioner to do other types of electrical work for which he has not demonstrated work experience.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulation, Electrical Contractors' Licensing Board enter a final order denying the application of Robert L. Morgan. DONE AND RECOMMENDED this 19th day of October, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 19th day of October, 1988. COPIES FURNISHED: Robert L. Morgan 7805 Northwest 39th Street Coral Springs, Florida 33065 Clark R. Jennings Assistant Attorney General Suite 1603, The Capitol Tallahassee, Florida 32399-1050 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Ard, Executive Director Department of Professional Regulation Electrical Contractors' Licensing Board 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondent, who was never licensed as a contractor, engaged in the unlawful practice of contracting when he entered into (and attempted to perform under) an agreement to build a dental office; and whether, if Respondent is found guilty of unlicensed contracting, Petitioner should penalize him by imposing an administrative fine and assessing investigative costs.
Findings Of Fact Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction to take punitive action against unlicensed persons who unlawfully engage in the business of contracting. At no time relevant to this proceeding was Respondent James Bresnahan ("Bresnahan") licensed, certified, or registered to do business as a contractor of any sort. In June 2007, Bresnahan entered into a contract with University Dental Health Care Center, Inc. ("University"), whereby, in exchange for University's agreement to pay Bresnahan a total of $42,350 in compensation for his work, Bresnahan promised to remodel a bay at the Shoppes of Rolling Hills ("Rolling Hills"), a shopping center located in Davie, Florida, where University planned to operate a dental office. The contract described the scope of the work that Bresnahan would perform as follows: Remove all walls per plans. Redesign interior space to reflect new office plans. New electrical per plans. New plumbing per plans. New droped [sic] ceiling and lighting per plans per Ken. Finish all walls with new paint colors per Angela. New flooring [illegible] tile to be picked by owner. Install new compressor bracket on back of building. Bring all utilities to dental chairs (vac[uum], water, electric, air and drain; five chairs per plans per Ken. Proposal is for drawings and permits and construction of office. Cabinets and installation by others. Equipment and plumbing fixtures by others per Ken. Handycap [sic] bathroom by Shops [sic] of Rolling Hills. (Quoted text reformatted from "all uppercase" to "sentence case.") Bresnahan had not previously undertaken a construction project such as this. He had, however, overseen the build-out of his wife's bakery, which was located in Rolling Hills. For that project, Bresnahan had engaged a general contractor, Johnson Beckett, Inc. ("Johnson Beckett"). Bresnahan, in other words, had been the client, Johnson Beckett the builder. Bresnahan had been introduced to University's principals by their mutual landlord, who——perhaps being unaware of Bresnahan's actual role in the construction of the bakery—— touted Bresnahan as a "builder." Bresnahan had not advertised or promoted himself as a builder, but neither did he disclaim such expertise upon meeting the principals of University; to the contrary, he ultimately offered to build a dental office for University, leading to the contract described above. On June 21, 2007, upon entering into the construction agreement with Bresnahan, University made a down payment of $10,000 to Bresnahan. Because he was not in fact a builder, Bresnahan's plan was to use this money, and other payments he would receive from University, to hire Johnson Beckett to act as the "general contractor" for all aspects of the project except the plumbing and electrical work, for which Bresnahan intended to engage separate subcontractors. Johnson Beckett would not bid a fixed price for the project, however, without a proper construction plan. Consequently, Bresnahan entered into a contract (in his personal capacity, not as an agent for University) with Johnson Beckett, pursuant to which the general contactor was to obtain a blueprint for the dental office project, appropriately sealed by a licensed engineer. For this drafting work, Bresnahan agreed to pay Johnson Beckett $5,000. As Johnson Beckett proceeded, it encountered some difficulty in obtaining information, which the engineer needed, concerning the equipment that would be installed in the dental office. Meantime, little or no work was being accomplished at the jobsite, which began to create tensions between Bresnahan and University. Nevertheless, University gave Bresnahan another check, for $5,000, on July 19, 2007. As the weeks passed, however, University became increasingly frustrated at the lack of tangible progress; it began to lose patience with Bresnahan. When Linda Commons, an owner of the company, started pressing Bresnahan for an accounting, the relationship deteriorated further. On or around August 21, 2007, Bresnahan sent University a letter that announced he was unilaterally canceling their contract. Thereupon, Bresnahan abandoned the job. As of the final hearing, Bresnahan had not refunded to University any of the compensation he received. In connection with the instant matter, the Department has incurred investigative costs in the amount of $209.55. Ultimate Factual Determinations Bresnahan's negotiation of, entry into, and attempt to perform under the construction agreement with University constituted the practice of contracting under Florida law. Thus, Bresnahan, who was not a licensed contractor, is guilty of unlicensed contracting, as charged in Count I of the Administrative Complaint. Bresnahan's negotiation of, entry into, and attempt to perform under the construction agreement with University also constituted the practice of electrical contracting under Florida law. Thus, Bresnahan, who was not a licensed electrical contractor, is guilty of unlicensed electrical contracting, as charged in Count II of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order which: (1) finds Bresnahan guilty of (a) engaging in the business of contracting without a license and (b) practicing electrical contracting without a license; (2) imposes an administrative fine of $10,000 for these incidents of unlicensed contracting; and (3) assesses investigative costs in the amount of $209.55. DONE AND ENTERED this 12th day of September, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2008. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 James Bresnahan 4950 Southwest 70th Avenue Davie, Florida 33314 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 G.W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Department of Business and Professional Regulation Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
