The Issue The issue whether Respondent violated subsections 489.533(1)(m)3., and/or 489.533(1)(f), Florida Statutes (2010),1 as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the Electrical Contractors Licensing Board within the Department of Business and Professional Regulation (Petitioner or DBPR). At all times material to the allegations in the Amended Administrative Complaint, Respondent, Steven Scott Clark, was a certified alarm systems contractor one, holding Electrical Contractor's Licensing Board's License Number EF1255. As a licensed contractor, Clark was the person who possessed the required skills, knowledge, and experience to be responsible for an alarm systems business or, in other words, to serve as its qualifying agent.2 Clark was the qualifying agent for E.A.S. Industries (E.A.S.), d/b/a A.B. Fire Systems (A.B. Systems). On January 23, 2006, A.B. Fire Equipment, Inc., (A.B. Equipment) submitted a proposal, signed on its behalf by Dick Sorbye, for work on fire alarm equipment at Crosswinds Apartment at 1300 N. Ocean Boulevard in Pompano Beach (Crosswinds). None of the three license numbers listed on the proposal is the same as Clark's. A.B. Equipment is not a licensed or qualified alarm contractor. Below the name of A.B. Equipment, which is checked on the proposal form, is the name of "A.B. Fire Systems/ALARM DIVISION" which is, in fact, the same company as A.B. Systems. The proposal for a total contract cost of $6,610.00, included the following language: We hereby propose to furnish the material necessary for completion of the following: Repair wiring short and replace the following devices. 9 weather proof horn strobes @ $95.00 ea. -- $855.00 A horn strobe is the small red rectangular-shaped, wall-mounted device which emits the siren sound and flashes a strobe light when a fire alarm is triggered. Because A.B. Equipment is not a licensed fire alarm contractor, it subcontracted with A.B. Systems, based on a verbal agreement, to perform work at Crosswinds. Employees of A.B. Systems wear shirts identifying them as employees of "A.B. Fire Systems." Crosswinds is located within 500 feet of the ocean and, because of that, regularly experiences substantial salt corrosion of metal. Horn strobes have metal parts and must be replaced regularly due to corrosion. As required in the proposal, half of the total contract cost or $3,305.00 was paid by Crosswind's representative on January 24, 2006, to A.B. Equipment. The receipt from A.B. Equipment with the same date has the name of A.B. Systems on the form and Respondent's license number next to that name. On January 31, 2006, Crosswinds issued a check for $1,650.00 to A.B. Equipment. The back of the first check was stamped for deposit in the account of E.A.S., the parent company of A.B. Systems. Another check designated "final payment" in the amount of $1,655.00 was dated February 8, 2006, but it was not deposited until March 9, 2006. That check was apparently held up by the then-president of the Crosswinds Board, Patricia Abujar, who questioned the need for an inspection of the alarm system by the fire department. Once the check was tendered, it was deposited, as directed by hand-written instructions on the back of the check, in the same account number as that for E.A.S. On February 28, 2006, Crosswinds received an invoice that had three license numbers on it, including Clark's. The invoice from A.B. Equipment was for an additional $704.90 for replacement of wires, a conduit, and the panel that was damaged by a shortage. The damage was caused by a construction company that was simultaneously making repairs at Crosswinds. Crosswinds had sustained substantial damage from Hurricane Wilma in October 2005. On February 28, 2006, Crosswinds also received an invoice from A.B. Equipment for one additional corroded horn strobe for $95.00 plus $5.70 for the sales tax. The invoice was identical to the one for damage by the construction company and also included Clark's license number. On March 15 and 18, 2006, respectively, Clark and Oakley Blevins, who was then the Crosswinds Board president, signed a City of Pompano Beach Building Permit Application for an after-the-fact permit for the replacement of a fire alarm panel at Crosswinds. Until the panel had to be replaced, no permit had been required. On the line on the form for the name of the contractor, "A. B. Fire Systems, Inc." was crossed out and the name "E.A.S. IND." was written. The application was not accepted by the building department until October or November 2006. The City delayed receipt of applications and issuance of permits because it was inundated after the hurricane. In the meantime, on October 6, 2006, Clark returned to Crosswinds in response to a service call. At the time, he replaced a corroded horn strobe, as he had done on an ongoing basis since beginning work at Crosswinds in 2004. Clark had a disagreement with Blevins, apparently over who from A.B. Systems would be providing service to Crosswinds in the future and over where a worker parked a company truck. Clark never returned to the site. A City of Pompano Beach document dated November 20, 2006, entitled "Plan Review Corrections Report," was transmitted by facsimile from A.B. Systems to Crosswinds' representative on December 14, 2006. Having last had a fire alarm inspection in February 2006, Crosswinds received a proposal dated February 19, 2007, from another company, Bass Fire & Security Systems, Inc. (Bass), to "trouble shoot and repair fire alarm system short program, test and certify" for $340.00. The work by Bass would qualify as the annual inspection for 2007. On March 30, 2007, Bass billed Crosswinds $726.05 for replacement of an outdoor horn strobe. In addition to trip and labor charges, there was also a charge for a mini-monitor module, a device used to identify each "pull station" that will cause a shortage if it becomes defective. Crosswinds paid Bass for its inspection work and subsequent repairs in a single check in the amount of $1,086.45 on April 10, 2007. Bass, on April 6, 2007, offered to "replace (seven) [corroded] weatherproof horn strobe units @ $89.00 ea[ch], [with] installation labor and misc[ellaneous] hardware" for a quoted total cost of $1156.00 plus tax. For that, Crosswinds paid Bass $1225.36 on April 23, 2007. On May 27, 2008, Crosswinds was inspected by a City fire inspector who noted on his report that it was an inspection of a new fire alarm system and that "A.B. Fire System is unlicenses [sic] contractor" and "Note ESA Industries Inc. will be the only person on jobsite to complete the test." On June 5, 2008, Crosswinds received anther quote from Bass to "make necessary repairs for fire dept. final inspection" for a total of $1905.00 plus tax. The quote included a "change of contractor fee [for the] (Pompano Beach Building Department)" and installation of a horn strobe on the first floor breezeway. Clark was still listed with the City as the only authorized alarm systems contractor at Crosswinds. Following City-mandated procedures, then-president of the Crosswind Board, Cheryl Deats, notified Clark by certified letter of a change of contractors in June 2008. She received no response from Clark. Deats testified that she believes that Clark's company, A.B. Systems performed work incompetently or negligently prior to having obtained a permit, causing financial harm to Crosswinds in the amount of $2,311.81 (1,086.45 plus 1,225.36) that it had to pay Bass to make repairs before time for the next inspection. Other than Deats' assumption that the work done by Bass was the result of Clark's company's negligence or incompetence, there is no evidence to support that finding. In fact, the evidence tends to support a finding that work done in March and April 2007, more than a year after Clark's work, was necessitated by corrosion due to the proximity of Crosswinds to the ocean. There is no evidence that the Crosswinds' Board was deceived and not aware that Clark was the subcontractor working on the fire alarm system. Regardless of whether they knew the name of his parent company, E.A.S., at least two previous Board presidents had direct interactions with him and saw his employees wearing shirts identifying A.B. Systems.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Electrical Contractors Licensing Board enter a Final Order dismissing the Amended Administrative Complaint filed on June 3, 2010, against Steven Scott Clark, d/b/a E.A.S. Industries, Inc., d/b/a A.B. Fire Systems. DONE AND ENTERED this 4th day of January, 2011, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2011.
Findings Of Fact During the period November 14 - 16, 1985, DHRS conducted a life safety survey of the Sanchez Retirement Apartments located at 1400 S.W. 26th Street, Ft. Lauderdale, Florida. As a result of that survey, certain deficiencies were discovered which were discussed with Mrs. Sanchez, then the owner and operator of the facility. Some deficiencies were to be corrected by December 15 and others by January 15, 1986. Those due to be corrected by December 15, 1985 were, in fact, corrected, but because of the impending sale of the property by Mrs. Sanchez to Mr. Holck, Mrs. Sanchez requested an extension of the time for correction of the January 15, 1986 deficiencies until February 15, 1986. On January 30, 1986, Mr. Leroy C. Dykes, Area Supervisor for DHRS, advised Mrs. Sanchez that a 30 day extension was granted so that the prospective new owners could complete the fire safety deficiencies by February 15, 1986. Mr. Holck took over ownership and operation of the facility on February 7, 1986. This was somewhat later than had been anticipated and made it impossible for him to rectify the remaining deficiencies by February 15. He requested of DHRS that someone come to the facility to explain to him what exactly had to be done since he was not present during the original inspection. He wanted to know with detailed clarification, what had to be done and how, and consistent with this request, was advised that someone from DHRS would be there, he contends in April, 1986. As a result, he took no additional action to remedy the remaining deficiencies then. However, before this individual could come, Mr. Bravo of DHRS conducted a follow-up survey on March 18, 1986, and again, wrote up several of the deficiencies that had been cited on the original inspection report. These form the basis of the violations outlined in the Administrative Complaint, and include: smoke detectors not powered by the house electric current and interconnected to the fire alarm system, paneling in the means of egress is not fire rated as Class A or B, doors in the facility between the resident rooms and common areas are not solid core doors, doors between resident rooms and common areas are not self-closing, and the kitchen and storage area is not separated from other parts of the facility with a material having a one hour fire rating including a one hour self-closing fire rated door. Mr. Bravo recommended sanctions to include a $250.00 fine for each of the five deficiencies with the exception of (c) for which he recommended a $200.00 fine. This recommendation was approved by the area supervisor, Mr. Dykes; the Human Services Program Director, Mr. Chastain; and by Amy Jones, Director of the Office of Licensure and Certification. All of the violations were classified as Class III violations and all were ultimately corrected before the final follow-up inspection on July 15, 1986. Respondent contends that he did not take immediate corrective action when he took over the property because, due to his prior experience dealing with DHRS as the operator of an adult congregate living facility, he had come to the conclusion that when there was any question as to the exact meaning of a DHRS write-up, it was best to have clarification from the agency in detail prior to commencing any corrective action. He requested an explanation visit from DHRS and, he claims, was visited by a Mr. Grassi in April, 1986, who, answered his questions. Thien Grassi returned for a follow-up in June, he found all the deficiencies to be corrected. This latter Grassi visit is subsequent to Mr. Bravo's follow-up inspection in March, 1986. Petitioner contends, on the other hand, that it is Respondent's responsibility to get the work done. If he could not get the previous owner to make the corrections prior to the transfer of the property, it was his responsibility to have requested clarification earlier on and that if he did not get an answer that would satisfy him and answer his questions, he should have gone higher up in DHRS to get one. The agency claims, "He should have shaken DHRS up," and tried to negotiate more time. It is DHRS policy to grant an extension if there is a showing that Respondent has already taken some affirmative step to effect corrective action. Here Respondent had not done so but was apparently waiting until he got clarification from the agency before even beginning to solicit bids for corrective construction or before issuing any purchase or work orders to acquire the materials necessary to do so. The majority of deficiencies identified on the original write-up were corrected by either Mrs. Sanchez prior to transfer of the property or by the Respondent after transfer but before the follow-up visit by Mr. Bravo. It, therefore, cannot be said that Respondent had not made some substantial effort to correct the deficiencies. If Respondent's allegation is correct, and there is no reason to believe it is not, based on his prior experience, it was to his benefit to not proceed with the remaining corrective action until such time as DHRS had given a definitive clarification of the actual work that needed to be done. DHRS contends that no additional clarification was required since the violations are violations of the standard safety code and anyone familiar with the code, including the fire department, could have given the Respondent the information he needed. DHRS, therefore, contends it was not necessary for Respondent to wait for its agent to come out and give the clarification requested. This is specious reasoning since the citation was issued by DHRS and it is not at all unreasonable for Respondent to request clarification from the agency writing up the alleged violation in the first place.
Recommendation Rased on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the citations be upheld but that the civil penalties be waived. RECOMMENDED this 5th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1987. COPIES FURNISHED: Ronald J. Holck, Administrator Sanchez Retirement Apartments 1400 Southwest 26th Street Fort Lauderdale, Florida 33315 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether the Petitioner, Eugene Boatright, is entitled to licensure as an alarm systems contractor by virtue of a passing grade on the January 26, 1989, examination.
Findings Of Fact Eugene Boatright was an unsuccessful candidate for the alarm systems contractor's licensure examination given on January 26, 1989. Mr. Boatright made a score of 74. A score of 75 was required for licensure. Each correct answer had a grade value of one point. Mr. Boatright originally challenged the answers to questions 22, 95 and At the formal hearing he abandoned his challenge to question 22. Question 95 dealt with standards for the installation, maintenance and use of Remote Station Protective signaling devices. The reference was to N.F.P.A. Chapter 72C, Section 1-3.1. Mr. Boatright contended that telephone exchange was a correct answer. DPR contended that telephone exchange was incorrect because all telephone exchanges do not have personnel on duty at all times trained to receive alarm signals. The reference section contains an exception which states: Exception: Where such an agency is unwilling to receive alarm signals, the authority having jurisdiction shall be permitted to accept another location with personnel on duty at all times trained to receive the alarm and immediately transmit it to the fire department. While a telephone exchange may, under the circumstances set forth in the exception, receive alarm signals, telephone exchange is not a correct answer to question 95. The instructions on the examination specifically advised the candidates that they were to use the general rule and were only to use the exception where it was directly indicated in the question. Question 99 invovled the mounting requirements for all installed fire warning equipment. The reference sections asserted by DPR were N.F.P.A. Chapter 75-1.1.2 and 1.1.3 and Chapter 74-4.1. Chapter 75 refers to "Installation." Chapter 74 refers to "Equipment Performance." Question 99 contains three possible answers: All installed household fire warning equipment shall be mounted so as to be supported independently of its attachment wires. so jaring [sic] or vibration will not cause accidental operation. so that the failure of any non- reliable or short-life component, which renders the detector inoperative shall be readily apparent without the need for a test. Mr. Boatright contends that the correct answer does not include part III of the answer. DPR contends that this portion of the answer is correct and refers to Chapter 74 on equipment performance to support its position. Chapter 75-1.1.2 and 1.1.3, in the chapter relating to installation, states: 5-1.1.2 All devices shall be so located and mounted that accidental operation will not be cause by jarring or vibration. 5-1.1.3 All installed household fire warning equipment shall be mounted so as to be supported independently of its attachment to wires. [Emphasis supplied]. Chapter 74-1, in the chapter relating to equipment performance, states: General. The failure of any nonreliable [sic] or short-life component which renders the detector inoperative shall be readily apparent to the occupant of the living unit without the need for test. Chapter 74-1 is only peripherally related to mounting and relates primarily to performance of the equipment. Question 99 is ambiguous and the answer given by Mr. Boatright is a correct answer. Mr. Boatright is entitled to one additional point on his examination and he therefore should have received a passing grade of 75 on the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order granting the examination challenge of Eugene Boatright and awarding one additional point to the score achieved by Mr. Boatright on the January 26, 1989, examination. DONE and ENTERED this 12th day of January, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO 89-5207 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Eugene Boatright Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(5); 10(10 & 11); 12(14 & 15); 18(17; and 19(18). Proposed findings of fact 2-6, 8, 11, and 13-17 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 7 is unnecessary. Proposed finding of fact 9 is unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Construction Industry Licensing Board Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 2); 2(4); and 3(3). Proposed findings of fact 4 and 5 are unnecessary. Proposed findings of fact 6 and 7 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Alfred C. Scott Attorney at Law 125 North Market Street Jacksonville, FL 32202 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202
The Issue The issue for consideration in this case is whether Respondent's certification as an electrical contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board (Board) was the county agency responsible for the certification of members of the construction trade and the regulation of that trade in Pinellas County, Florida. Respondent, Gabriel Varro, was certified as an electrical contractor by the Board and held such certification at all times pertinent hereto. On June 18, 1998, Nicholas Sasso, a building inspector with Pinellas County, visited a construction site at 24698 U.S. Highway 19 in Clearwater, Florida, where Respondent was engaged in electrical work. Mr. Sasso was supposed to conduct an inspection of electrical work done by the Respondent at that site but when he arrived at the construction site, at 11:45 a.m., was unable to gain entry to the site. At that time, Mr. Sasso called Respondent by telephone and left a message for Respondent to call back to reschedule the inspection. Respondent did not call in for re-inspection until October 23, 1998, over four months later. In response, however, Mr. Sasso again went to the site for an inspection on that day, where he found at least five violations of the building code for which he issued red tags (requirements for correction). At that point, Respondent had 15 working days to take corrective action, pay the red tags, and call for re-inspection. Mr. Sasso also called Respondent and left a message on the answering machine, but Respondent did not call back. On December 8, 1998, the Building Department's computer produced a notice of Respondent's failure to take sufficient corrective action or pay the red tags. Mr. Sasso returned to the site on November 16, 1998, for a follow-up and found that the Respondent had failed to take the required corrective action. Mr. Sasso returned to the site on December 8, 1998, and found the violations had still not been corrected. On December 30, 1998, the computer again indicated Respondent's failure to correct or pay the red tags, so Mr. Sasso went to the site, saw the deficiencies had not been corrected, and issued to Respondent, a Notice of Violation for failure to take corrective action and to pay red tags, and for electrical violations of the National Electrical Code and/or the standard building code which he had observed on several prior official visits to the construction site. Respondent was advised on the Notice of Violation that failure to correct the deficiencies within 15 working days of the citation would result in a court citation. Respondent called Mr. Sasso that same day, upon receipt of the Notice of Violation, and indicated he would comply with the requirements of the code, but he had not done so when Mr. Sasso returned to the site on February 4, 1999, to conduct a follow-up inspection, appropriate action has not been taken. Respondent claims he paid the red tags even though he did not cause the defects; and requested the Building Department to take his name off the permit. Respondent explained the mix-up by claiming the owner of the property had taken out the permit himself and put his, Respondent's, name on it as contractor because Respondent had agreed to do part of the project to correct some work done improperly by a tenant of the park which had resulted in a violation being issued to the park owner. The majority of the deficiencies discovered, Respondent claims, were located inside a structure on the property to which he never got access. Respondent also contends he limited his work to correction of an improper connection from the meter to the riser. He claims he advised the property owner that the only way he, Respondent, would call for an inspection would be if he were provided access to the structure so he could let in the inspector. It appears that because of a subsequent determination that the entire project violated the zoning laws, the job was cancelled by the owner. On February 17, 1998, Mr. Sasso also observed electrical work being carried on at an RV park in Pinellas County. Because Mr. Sasso could not recall any permit having been pulled for electrical work at that site, he stopped to see what was going on and identified himself to the workman on the job. The worker identified himself as Respondent and gave Mr. Sasso his card. Respondent advised Mr. Sasso of what he was doing, and when Mr. Sasso advised Respondent that he could not legally do the work without first obtaining a permit, Respondent indicated he was going to get it. Mr. Sasso noted that a trench had been dug near a power line, creating a potentially dangerous situation, and that five 50-watt electrical outlets had been installed on pedestals outside the front of the clubhouse. This was confirmed by the proposal submitted to the client by Respondent on September 2, 1998, and accepted by the client on December 4, 1998. The proposal called for the electrical permit to be included in the total contract price of $7,000. Respondent admits to giving the owner of the property a proposal for electrical work to be done, but claims, as the proposal form indicates, the owner was to dig the trench. The owner had the trench dug, as called for, and also placed the pedestals. The digging and the placing of the pedestals were an integral part of the project which Respondent had agreed to perform, and those actions required a permit to be issued prior to starting the work. The required permit was not obtained by Respondent or anyone else, and the work in progress has not been completed. Petitioner has suggested that Respondent be fined $750.00 for the violation alleged in Count One; $300.00 for the violation alleged in Count Two; and $750.00 for the violation alleged in Count Three. Counts One and Three are classified by statute as "major" violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board, enter a final order assessing an administrative fine of $1,050.00 for the violations alleged in Counts One and Two. DONE AND ENTERED this 11th day of August, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1999. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 33773-5116 Gabriel Varro 1910 Union Street Clearwater, Florida 33763-2249
The Issue Whether disciplinary action should be taken against Respondent for alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes.
Findings Of Fact Respondent, is the sole owner of Expeditior’s Home Improvement Agency. Expeditor’s represents various contractors in the area and markets various home improvement products and services to a homeowner. Respondent is not licensed and has never been licensed to engage in construction or electrical contracting in the State of Florida. Nor did Petitioner’s business possess a certificate of authority to practice as a qualified business in contracting. In the past the company was paid by the homeowner for a construction project and would subsequently hire licensed contractors to do the work. However, that type of arrangement constituted contracting for which Respondent was not licensed. After a complaint for unlicensed contracting by Petitioner in November 2003, Respondent changed his manner of doing business in order to comply with the licensure statutes. Currently, Respondent solicits business for a contractor for which the contractor pays Respondent. The contractor is paid by the homeowner for the work the contractor performs. At about the same time, Respondent revised his forms and business cards to reflect the contractor who will be doing the work, and a disclosure statement stating that Expeditor’s is not a licensed contractor and is acting as a sales agent for the contractor listed in the contract. References to contracting activities were removed from the face of the contract. In December, 2003, Respondent through Expeditor’s employed Saleem Ahmad as an independent contractor/salesman for the company. Respondent had known Mr. Ahmad through a company, similar to Expeditor’s, that they had both been employed by. As a sales representative of Expeditor’s, Mr. Ahmad was given Expeditor’s form proposals/contracts and business cards. At the top of the contract forms were the words “Vinyl Siding, Security Replacements Windows, Sunrooms . . . New Home Construction.” At the bottom of the forms were the words, “Networking Qualified Licensed & Insured Contractors.” Similarly, Mr. Ahmad possessed a business card indicating Expeditor’s engaged in work that included vinyl siding, sunrooms, windows, roofing, fencing, and new home building. Mr. Simmons also had a similar business card. The forms and cards possessed by Mr. Ahmad were the forms that Expeditor’s current forms replaced. The evidence was not clear whether Mr. Ahmad had been given the new forms. Around February 9, 2004, Mr. Ahmad, acting as an apparent agent of Expeditor’s contracted with Mr. Clarence Gavin to, inter alia, replace two windows, install a kitchen counter top and cabinets, four ceiling fans, and remount a water heater. The contract price for the work was $19,875. Such work required a licensed contractor. The contract was written on an Expeditor’s proposal form and listed Calvin Hall as the Architect. The evidence was not clear whether Mr. Hall was an architect. However, the evidence did demonstrate that Mr. Hall was a licensed contractor and was the contractor against who Mr. Gavin was filing the complaint. Mr. Simmons never saw the contract Mr. Ahmad had written for the Gavin job. Likewise, he never saw any money Mr. Gavin may have paid for the job. Indeed, Mr. Simmons was unaware of the Gavin contract or job until the investigation in this matter. Apparently, Mr. Ahmad was defrauding Mr. Simmons and misusing old Expeditor’s business forms. However, the evidence was clear that Respondent did not intentionally engage in unlicensed contracting. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended a Final Order be entered finding Respondent not guilty of violating Sections 489.127 (1) (f) and 489.531 (1), Florida Statutes (2004), and dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of May, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 3rd day of May, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 C. Erica White, Esquire 327 Office Plaza Drive, Suite 211 Tallahassee, Florida 32301 John Washington, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent has been licensed as a certified electrical contractor in the State of Florida, having been issued License No. EC0000971. At all times material hereto, Respondent has been the sole qualifying agent for AAA Quality Electric, Inc. (hereinafter "AAA"), a California corporation with its principal office located in Riverside, California. At all times material hereto, Respondent has been a permanent resident of the State of California. By Order of Emergency Suspension of Licensure entered on September 12, 1990, by the Secretary of the Department of Professional Regulation, Respondent's license as a certified electrical contractor in Florida was summarily suspended. At the time, Respondent held either master's licenses or contractor's licenses in 21 states and held hundreds of city licenses. Between January, 1989 and June, 1990, AAA operated in 11 states. During that time period, AAA had as many as 65 people working in the office in California, with as many as 85 electricians in the field. During that time period, AAA had as many as 14 electricians working in the State of Florida. AAA only hired electricians who possessed either a journeyman's or a master's license in the jurisdiction where they worked since that level of licensure enables that electrician to work without direct, on-the-job supervision. AAA advertised when a position was open and administered to job applicants an examination which AAA considers equivalent to a journeyman's examination. To be hired, one needed to pass the examination. AAA would also require that a new employee provide AAA with his or her license number or a copy of his or her current licensure. AAA also employed area supervisors and regional supervisors. Respondent was available to any of the journeymen or masters working for him either by telephone or by sky pager at all times. If anyone doing an installation had a problem, that person could contact Respondent to discuss the problem with him. Respondent's permit-pulling policy was to pull a permit whenever one was required. He had on file, in the various jurisdictions, letters allowing one of his employees to pull permits under his State of Florida license number. For example, in Pompano Beach, which is located in Broward County, Respondent had on file a letter allowing Bill Mopis to pull permits under Respondent's license even though Mopis held a master's license in Broward County and could pull permits under his own license number. By the time that Petitioner suspended Respondent's license to practice electrical contracting in the State of Florida, Respondent had changed his permitting policies so that a permit was pulled for any type of work performed in the State of Florida. AAA advertised in newspapers and in telephone directory yellow pages. When a request for service was made, one of the journeymen or master electricians employed by AAA would be dispatched to the work location. AAA in California was aware of which employee had been dispatched to perform which job. On the day following the job, AAA would call the customer to make sure that the customer was satisfied by the work that had been performed. In March, 1989, Anna and Rudolf Reider contacted AAA pursuant to an ad in the telephone directory yellow pages and requested that an electrician come to their residence to install a ceiling fan. The residence was located in Pompano Beach, Broward County, Florida. Terry Stewart, who holds a master's license from Broward County, responded to their call. When he arrived, Mrs. Reider explained to him that she also wanted a wall outlet which was located behind her bed in a different room to be moved a few feet to the side in order to make it accessible. Stewart took down a light fixture from the ceiling and replaced it with a ceiling fan. He also moved the wall outlet located in the master bedroom by running conduit along the wall and mounting a metal outlet box on the wall in the outlet's new location. Stewart charged the Reiders $391.30, which represented the rate of $46.50 per 1/2 hour plus materials. He also applied a senior citizen discount of 10% to the labor portion of the bill. The hourly rate charged by Stewart was that rate which was quoted over the telephone by AAA to Mrs. Reider when she placed the service call and is in accordance with the labor rate reflected on the work order. The Reiders were satisfied with the ceiling fan installation and with the price charged by Stewart. Although Mrs. Reider had shown Stewart an electrical installation located on her porch, which installation is a pipe with wires inside, and told him that was what she expected, and although she admits that she knew that the new wall outlet would not look the same as the other outlets in the room because there had to be an exposed pipe on the wall, she and her husband were dissatisfied with the appearance of the wall outlet extension in their bedroom. Mrs. Reider subsequently contacted AAA, and Stewart returned her phone call. He advised her that he was willing to come back to her residence and change the appearance of the installation by using a smaller pipe, but he would need to charge her $46.50 for the return service call. Mrs. Reider was unwilling to pad any additional monies for Stewart to return and has never had that work accomplished. Both the ceiling fan and the extended wall outlet work properly. Stewart did not obtain a permit before performing the electrical work. There was no licensure barrier to Stewart obtaining a permit and the inspections that attend the obtaining of a permit since at the time Respondent was licensed by Petitioner, AAA had an occupational license to perform work in Broward County, and no occupational license was required for the City of Pompano Beach since AAA did not maintain an office within that municipality. When Stewart completed the job, he gave the Reiders a 5-year extended warranty, and both Mr. and Mrs. Reider signed the work order authorizing the work and payment therefor, and acknowledging satisfactory completion of the work. The Chief Electrical Inspector for the City of Pompano Beach believes that an electrician, to work without supervision, must be either a journeyman or a master electrician, which Terry Stewart was. The City of Pompano Beach has taken no action against AAA for failure to pull a permit for the Reider job. Although the Chief Electrical Inspector believes that a permit is required for any electrical work performed within the City of Pompano Beach, as provided in the City's permitting ordinances at Section 301.1(e), Section 301(b) (2) sets forth exceptions to the permitting requirements and provides that: No permit shall be required, in this or any of the following Sections, for general maintenance or repairs which do not change the Occupancy and the value of which does not exceed Eight Hundred Dollars ($800.00) in labor and material. ... At the time that AAA performed the work at the Reider residence, the ad which appeared in the yellow pages portion of the telephone directory did not contain Respondent's license number. The City of Pompano Beach has adopted the South Florida Building Code which adopts the National Electrical Code. The National Electrical Code provides that the bonding jumper is to be a green wire or the wire is to be left bare. In the receptacle installed by Stewart, a white wire was used for the bonding jumper. That violation of the National Electrical Code is easily remedied by stripping the white wire bare or by substituting a green wire. Such work is covered under the warranty given by AAA to the Reiders. Although the 1990 National Electrical Code prohibits the use of outlet boxes as the sole support for a ceiling fan and provides an exception from that requirement, the evidence is unclear as to the requirements of the National Electrical Code in force at the time the work was performed. Within the electrical trade, taking down an existing light fixture and replacing it with a ceiling fan and moving a wall outlet are considered to come within the definition of repair and maintenance work. Accordingly, the work performed by AAA at the Reider residence was excluded from permitting requirements both by definition and by cost. Mary Scalza is the owner of Rub-A-Dub Laundromat in West Palm Beach. Early Saturday morning, on June 2, 1989, she experienced a breaker box "blowout", which incapacitated 14 of her washing machines. She located AAA's ad in the yellow pages of the telephone directory and called. AAA quoted her the price for emergency, weekend repairs, and she agreed. Terry Stewart responded to the call. When he arrived at Rub-A-Dub, he saw that the breaker box was located between two rows of washing machines on the floor and next to the overflow drain. He advised Scalza that the location of the box was a code violation, and the box had to be relocated. He told her the approximate cost of doing so but told her that she would have to call AAA to verify with the Company what the cost would be. She told him that the cost of relocating the box was too expensive and implored him to effectuate some repair so that her machines would be operable as soon as possible. Stewart explained to her the dangerous nature of the location of the box but agreed to effectuate a temporary repair. Stewart was unable to replace the entire breaker box; rather, he replaced all inside parts, using the old box. Although Scalza denies that Stewart told her he was simply effectuating a temporary repair until Monday morning when he could obtain the proper parts from a parts supply company, the work order signed by Scalza conforms with AAA's policies regarding temporary repairs. Specifically, the work order provides that no guarantee was given for the work. It is clear that Stewart did return to Rub-A-Dub Monday morning, and Scalza refused to let him touch the breaker box. When Stewart finished his temporary repair on Saturday afternoon, he submitted to Scalza a statement in the amount of $892.10. She gave him a check for $600.00 and paid him the balance in cash. When Scalza's husband came to the laundromat, he became very angry about the amount of the bill. On Monday morning, Scalza contacted the electrical inspector for the City of West Palm Beach, who came to the laundromat, looked at the work that had been accomplished, and "red tagged" the job due to the location of the breaker box. Scalza did not advise him that it was simply an emergency temporary repair. Scalza stopped payment on her check and contacted AAA, advising them not to return to complete the job. When an emergency repair is effectuated in West Palm Beach, it is Permissible for the permit to be pulled on the next business day. Since AAA was fired from the job on the next business day, AAA did not apply for a permit. Instead, AAA sent Stewart back to Rub-A-Dub to refund to Scalza the cash portion of her payment to AAA and to remove the parts Stewart had used for which Scalza would not pay. Scalza gave Stewart the parts which AAA had supplied which had already been removed by the other electrical company hired by her to do the work. That subsequent company did pull a permit for the work at Rub-A-Dub and did relocate the breaker box, which apparently Scalza authorized that company to do. The electrical inspector for the City of West Palm Beach agrees that the responsibility for pulling the permit on the Rub-A-Dub job was that of the subsequent company that effectuated the repairs and not the responsibility of AAA which had been fired from the job before it could pull a permit on Monday, the next business day following the emergency repairs effectuated over the weekend. Petitioner's witnesses agree that if the work done by AAA was a temporary repair for a few days, then the work that was accomplished by Stewart was, in fact, a safe, temporary repair. Further, it is a "judgment call" as to whether an electrician is required to bring electrical service up to code requirements, regardless of the nature of the work an electrician has been called upon to do. Further, anything involving water is always a "judgment call." Even Petitioner's expert would consider effectuating repairs to the breaker box in the location it was in when Stewart came to Rub-A-Dub if the box was completely enclosed and weatherproofed. No evidence was offered as to whether the box was completely enclosed and weatherproofed. Alton F. LaBrecque is an employee of AAA. He holds a journeyman's license from Pinellas County. Pinellas County and Hillsborough County have a reciprocal agreement regarding licensing, i.e., as long as a person holds a journeyman's license from one of those counties, he is not required to obtain a journeyman's license to work in the other county which is on the other side of the bridge. It is the practice in both Pinellas and Hillsborough Counties that if a journeyman who is licensed in one of those counties shows his card to an inspector from the other county, that is all that is required by the inspector of the other county to insure himself that the journeyman is properly licensed. The City of Tampa, which is in Hillsborough County, allows Hillsborough County to regulate licensing. If a person is licensed to work in Hillsborough County, then he is also licensed to work within the City of Tampa. At all times material hereto, AAA had an occupational license to work within the limits of the City of Tampa. On September 26, 1989, Heidi Bekiempis contacted AAA to request that someone come to her residence in Tampa to replace a dimmer switch. Alton LaBrecque responded to that call. When he arrived at the Bekiempis residence, Mrs. Bekiempis also advised him that certain lights within the house were flickering. LaBrecque replaced the dimmer switch which had been completely burned. It is LaBrecque's practice to involve the customer in the work that he is doing as much as possible so that they understand what is being done and why. When he checked the breaker box, he noticed that there were loose connections within the breaker box. He had Mrs. Bekiempis "running around the house" turning lights on and off while he tightened wires and checked the breakers. LaBrecque tested each breaker in the box with a digital meter and then with an infrared tester. Using the two different pieces of equipment, he tested both the line side and the load side of the breakers while they were carrying a full load. He discovered that three single-pole 20-amp breakers and one double- pole 60-amp breaker were consuming electricity as it passed across the breakers. Manufacturer specifications allow a breaker to consume up to .029 volts. The four breakers in question were each consuming one volt which is equal to 120 watts. He understood that the implication of the fact that those breakers were "hot" and consuming electricity meant that they would not trip properly and there was a danger of wires burning or even a fire starting. He also understood that a bad breaker had been the cause of the dimmer switch burning. Although his work order completed at the time indicated that a breaker was only giving off 87-93 volts and he testified at the final hearing that each of the breakers was consuming one volt, even the one volt consumption testified to at the final hearing was sufficient to show that a dangerous condition existed and the breakers needed replacing. Even though Mrs. Bekiempis denies authorizing the replacement of the circuit breakers, she does admit that LaBrecque told her about the danger of a fire, and she signed the work order after completion of the job acknowledging the satisfactory completion of the work. That work order clearly reflects the replacement of the breakers, the results of LaBrecque's testing, the reason why the breakers were replaced, and an itemized listing of the costs for the replacement breakers. It is found that Mrs. Bekiempis authorized replacing the breakers. Mrs. Bekiempis paid AAA $384.00 for the work performed. The replacement dimmer switch works properly, and the Bekiempis' lights stopped flickering after LaBrecque replaced the bad breakers. Mrs. Bekiempis unsuccessfully tried to stop payment on her charge card for all of the work performed by AAA. Between September 26, 1989, and February 15, 1990, the replaced breakers and the replacement breakers were primarily in the possession of Mr. and Mrs. Bekiempis. During that time, Mr. Bekiempis gave breakers to two different electricians for testing. On February 15, 1990, he gave breakers to an investigator for the Department of Professional Regulation. On February 20, 1990, the investigator gave breakers to Joe Bolesina, the Chief Electrical Inspector for Pinellas County. At some subsequent time, Bolesina marked four breakers and gave them to a clerk in his office to send to General Electric for testing. When Bolesina subsequently received breakers from General Electric, he returned them to Petitioner's investigator who retained custody of them until his deposition was taken in this case on October No explanation was offered as to how the breakers which were marked as an exhibit to the deposition of Petitioner's investigator on October 10 got to the deposition of Joe Bolesina taken on October 11 at which time the breakers were marked as an exhibit to his deposition. No explanation was offered as to who had custody of the breakers between October 11 and the time they were produced at the final hearing commencing on October 17, 1990. It is probable that the breakers that were marked at some unidentified time by Joe Bolesina are the same breakers which were admitted in evidence at the final hearing in this cause since the tags placed on the breakers by Bolesina remain on the breakers. However, there is no basis for assuming that the breakers which were replaced by LaBrecque five months before Bolesina received them and marked them were the same breakers that were replaced by LaBrecque. During the afternoon of Saturday, March 17, 1990, a tornado blew down a huge oak tree located in the front yard of the residence of Clarence Cruey in the City of Tampa. As it fell, the tree tore the entire electrical service off the front of the Cruey residence, including the meter, the riser, and the wires. The customer had no power at all. Cruey looked in the yellow pages to find an electrical contractor who would come to his residence immediately to effectuate the repair work even though it was still storming. AAA responded to his call, quoted to him its rates for 1-hour emergency service, and dispatched Alton LaBrecque and another AAA employee to perform the services. The two men worked there in the dark and in the rain for four hours, replacing Cruey's electrical service. Few of the parts were capable of being reused since they had been damaged by the tree or because they did not meet code requirements. For example, a Delta surge arrester had been used previously, and that type of equipment was, at the time, illegal in Tampa. AAA completely replaced the riser, hub, meter can, meter socket, wiring, and many other parts. At the conclusion of their work, AAA presented an itemized bill to Cruey in the amount of $2,556.17, and Cruey signed the acknowledgment that all work had been performed satisfactorily. He paid for the work by credit card but subsequently stopped payment, and AAA has been paid no monies for their labor or material regarding the Cruey job. Since the work at the Cruey residence was performed on an emergency basis on a Saturday, on the following Monday LaBrecque went to pull the permit for the work. Employees at the City of Tampa would not accept his permit application saying that he was not authorized to pull a permit for AAA and that a copy of AAA's workmen's compensation insurance was not on record with the City. Although authorization letters had been previously submitted, and although a copy of the insurance certificate had been filed with the City in January when AAA's City of Tampa occupational license was renewed, LaBrecque had AAA send additional copies of those documents to the City. When he again attempted to apply for the permit, the City advised him that they still did not have copies of those documents. LaBrecque contacted AAA and another set of documents was provided to the City. When LaBrecque returned, he was told that the documents still had not been received. When LaBrecque hand- carried another set of those documents to the City and "stuffed it in their faces," they accepted his permit application, ten days after he first applied. The permit itself was not issued for several months, and by the time of the final hearing in this cause the City had still refused to make the required inspection although Respondent had called for the inspection a number of times, including once on the record during a hearing conducted by the Unified Construction Trades Board of the City of Tampa. Although refusing to make an official inspection, the Chief Electrical Inspector for the City of Tampa inspected the work at the Cruey residence on an "unofficial" basis. Based upon that unofficial inspection, he concluded that AAA had replaced parts that did not need replacement and that AAA had not done all of the work for which it had charged Cruey. On July 3, 1990, the Unified Construction Trades Board of the City of Tampa revoked Respondent's permitting privileges for 1 year for the work done at the Cruey residence. On August 7, 1990, the Unified Construction Trades Board of the City of Tampa suspended Respondent's permitting privileges to run concurrently with the revocation entered on July 3, 1990. On September 11, 1990, based on the fact that the City of Tampa had taken disciplinary action against Respondent, the Electrical Board of Adjustment, Appeals and Examiners of Hillsborough County suspended Respondent for a period of 5 years. These two disciplinary actions are not involved in the Administrative Complaint filed against Respondent in this cause, and proof of them was offered by Petitioner for the sole purpose of aggravation of any penalty to be assessed against Respondent. Photographs admitted in evidence at the final hearing in this cause clearly refute the testimony given by the Chief Electrical Inspector for the City of Tampa which resulted in the July 3, 1990, revocation of Respondent's permitting privileges. The photographs reveal the work done by AAA and also depict the damaged parts which were replaced by AAA since those damaged parts were still lying in Cruey's yard at the time the photographs were taken. Respondent was prohibited by the Unified Construction Trades Board from offering the photographs and other evidence in defense of the charges then pending against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against Respondent in this cause. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of November, 1990. LINDA M. RIGOT 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 November, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-6172 Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 2-5, 7, 10, 16, 17, 20, 23, and 25-27 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 6, 9, 11-15, 18, 19, 22, and 28 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 8 has been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed findings of fact numbered 21, 24, and 29 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 1, 4, 4.1, 5-7.5, 7.9, 7.10, 7.13-7.16, 8, 8.1, 8.3-8.6, 8.8, 8.9, 9.0, 9.2-9.7, 9.10, 9.12-9.14, 9.16- 9.20, 10, 10.1, 10.3, 10.4, 10.6-10.19, 10.21-10.23, 12-12.8, 13.9, and 13.10 have been rejected as not constituting findings of fact but rather as constituting conclusions of laws, recitation of the testimony, or argument of counsel. Respondent's proposed findings of fact numbered 2, 3, 7.6-7.8, 7.11, 7.12, 8.2, 8.10-8.12, 9.1, 9.8, 9.11, 9.15, 10.20, 11-11.2, 13.2, 13.4-13.8, and 13.11 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 8.7 has been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed findings of fact numbered 10.2, 10.5, 13, 13.1, and 13.3 have been rejected as being unnecessary for determination of the issues herein. COPIES FURNISHED: Daniel O'Brien Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Robert G. Harris, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 David M. Gaspari, Esquire Adams, Coogler, Watson & Merkel Suite 1600, NCNB Tower 1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069 Neil F. Garfield, Esquire World Executive Building, Suite 333 3500 North State Road Seven Fort Lauderdale, Florida 33319 Scott Anderson, Esquire 2033 Main Street, Suite 402 Sarasota, Florida 33427 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner was a candidate for licensure as an electrical contractor and took the electrical contractor examination given July 26, 1983. Petitioner's initial grade was 70 percent. Additional credit was given based on certain objections and Petitioner's grade was raised to 73.5 percent. The minimum passing score on this examination is 75 percent. See Rule 21GG- 6.01(4), F.A.C. Respondent concedes that Petitioner's answer to question #11 should be credited since the .80 multiplier utilized by the Board in its calculation was not correct pursuant to note 10A of Table 310-16 of the National Electrical Code. Petitioner's grade is thereby further raised to 74.5 percent. Question #13 involves the calculation of electrical service for a lobby room of an apartment house. There was no listing for a lobby on the Table 220- 25 of the National Electrical Code and since this lobby is found in an apartment building, the service should be the same as a residence which is three watts. Furthermore, Petitioner made mistakes on the percentage he utilized on both motor loads and incorrectly multiplied the fire alarm service by 1.25. Petitioner incorrectly answered question #16, in part because he utilized two watts instead of three watts for the lobby computation. As noted above, the lobby was in an apartment house and should have been assigned the residential rate. Question #23 reads as follows: The owner is thinking of taking 2400 square feet of the lobby and adding a barber shop with 120/208 single phase panel. There would be a 9 KW hot water heater (at 125 percent) and 15 other receptacles, a reverse cycle air conditioner, 3 HP, 208 volt. How many amps would this add to the service? The accepted answer to the above question is computed by adding the additional current requirements to the existing lobby area. Petitioner followed this procedure but went one step further. He deducted the current required for the 2400 feet of lobby space which would no longer exist if the barber shop were added. Question #23 clearly contemplates removal of 2400 feet of lobby space. Therefore, the best answer to the question is derived by following Petitioner's procedure rather than Respondent's. Petitioner should be given credit for his answer to this question, thus raising his grade to 75.5 percent. Petitioner marked the wrong answers on his answer sheet for questions 49 and 60. He was not given credit for his correct calculations on his work sheet since the Board does not grant credit for any information which is not reflected on the answer sheet. This has been a consistent Board policy.
Recommendation From the foregoing, it is RECOMMENDED that Respondent enter a Final Order assigning Petitioner a grade of 75.5 percent on the July, 1983 electrical contractor examination. DONE and ORDERED this 22nd day of May, 1984 in Tallahassee, Florida. R. T. CARPENTER 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 22nd day of May, 1984. COPIES FURNISHED: David G. Budd, Esquire 660 Ninth Street, North Naples, Florida 33940 Drucilla E. Bell, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jerry W. Hendry, Executive Director Electrical Contractors Licensing Hoard 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 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 Whether Petitioner Agency for Health Care Administration properly assigned conditional license status to Respondent, Westminster Woods on Julington Creek, based upon its determination that Respondent had violated Florida Administrative Code, Rule 59A-4.130, and 42 CFR Section 483.70 via Florida Administrative Code Rule 59A-4.1288, due to the presence of two wide-spread Class I deficiencies cited at the most recent annual licensure survey of January 27-29, 2003. Whether Petitioner Agency for Health Care Administration properly assessed a $30,000.00 fine against Respondent for violating 42 CFR Section 483.70 via Florida Administrative Code Rule 59A-4.1288, as well as Florida Administrative Code Rule 59A-4.130, due to the presence of two wide-spread Class I deficiencies at the most recent annual survey on January 27-29, 2003. Whether the Agency for Health Care Administration is entitled to $6,000.00 in costs related to the investigation and prosecution of this case(s), pursuant to Section 400.121(10), Florida Statutes.
Findings Of Fact Pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code (2002), AHCA is the regulatory authority responsible for licensure of skilled nursing facilities and for enforcement of all applicable statutes and rules governing skilled nursing facilities, of which Respondent Westminster Woods at Julington Creek is one. On January 27-29, 2003, AHCA conducted an annual licensure and re-certification survey of Respondent's facility. As a result of that survey, the facility was cited for two Class I deficiencies related to failure of the facility's fire alarm system. Each of these deficiencies was cited upon the same underlying facts. AHCA represented that one was cited as a Federal "tag" and the other was cited as a State "tag." In the Administrative Complaints, AHCA alleged, in a single Count, two separate Class I deficiencies. Respondent is a 60-bed skilled nursing facility located in Jacksonville, Florida. Respondent houses more of the "older- old" or "elderly-elderly" residents than the average skilled nursing facility. Respondent is a second floor facility with two stairwells that provide direct outside egress from the facility and that can be used as fire exits. During the January 27-29, 2003, survey, the facility housed 58 residents. Respondent's 58 residents on those dates were fairly dependent in terms of their physical capabilities. More than one-half of them were over the age of 85, and a couple of the residents were over 100 years old. Only one of the residents on January 27-29, 2003, was independently ambulatory. The remainder of the residents were incapable of independent ambulation. One of the residents was bed-ridden. Thirty-eight residents required extensive assistance in transferring or ambulating. The remainder of the resident population required assistive devices such as canes or walkers to transfer or ambulate. Due to their age, physical condition, and inability to engage in self preservation, these residents were extremely vulnerable in the event of a fire. The survey team arrived at the facility at 6:00 a.m. on January 27, 2003. At around 8:00 a.m., the facility's maintenance supervisor, John Doran, conducted his usual rounds of the facility. Mr. Doran personally checks the fire alarm panel twice daily, and did so that morning. The panel has three lights: A green light which means that the panel is working; a yellow light which means a mechanical failure has occurred; and a red light which signifies an alarm. Mr. Doran noted that no light was on. The fire doors, which close automatically if the alarm is activated, were still open. Except for the absence of any alarm panel light, everything seemed to be normal. Therefore, on the morning of January 27, 2003, Mr. Doran believed that there was a problem with the fire alarm panel, not the fire alarm system. In addition to Mr. Doran's twice-daily checks, Respondent's alarm system is monitored by an outside monitoring company which is supposed to call the facility if any problem is detected with its fire alarm system. The monitoring company did not call, which also suggested that the system itself was not malfunctioning, but merely that a light was out on the alarm panel. Nonetheless, Mr. Doran called his secretary, who contacted "W. W. Gay," the contract repair company for the system, and asked that a technician come to the facility. Thinking there was no immediate danger, but only that there was a problem with the alarm panel lights, and believing that everything that could be done up to that point had been done, Mr. Doran did not mention the alarm panel/system to surveyor Patricia McIntire, R.N., when she interviewed him about hot water temperatures around 10:00 a.m. on January 27, 2003. W. W. Gay's technician arrived at the facility about 10:30 a.m. and began trouble shooting the fire alarm system. The first technician could not find the problem, so he called for a second technician. During the course of January 27, 2003, three technicians arrived at Respondent's facility and worked on the panel, in full view of staff and surveyors who were in and around the nurses' station. During the entire period that the fire alarm panel was not working, which ultimately amounted to at least three days, a large number of staff and other responsible people were around the resident areas. The January 27, 2003, morning shift had a minimum of 17 staff members directly assigned, with others coming and going from the unit. In all, there were around 25 people circulating in the nursing home during the day shift. After the surveyors had left, the evening shift had nine staff members assigned to the unit, with additional staff overlapping from the day shift. The night shift had six assigned staff members, plus "Ron," Respondent's security man, who was assigned to a fire watch, beginning late on the afternoon of January 27, 2003. (See Finding of Fact 32.) On Tuesday, January 28, 2003, there were 20 staff people directly assigned to the unit on the day shift. Counting the AHCA surveyors and ancillary staff, there were approximately 27 people on the floor. The evening shift had nine specifically assigned staff members, with others overlapping. The night shift had at least six staff members. On Wednesday, January 29, 2003, the numbers were similar. During the course of January 27, 2003, Mr. Doran did not tell Respondent's administrators, Don Wilson or Mike Sweeney, about the problem with the fire alarm panel because he thought the fire alarm panel problem was being resolved by the W. W. Gay technicians and because both administrators were very busy with the AHCA survey. Around 4:00 p.m., January 27, 2003, Mr. Doran found out that the problem with the fire panel was more serious than he had earlier thought. The AHCA surveyors had already left the facility. Mr. Doran went to Mr. Sweeney and Mr. Wilson. He told them at that time that W. W. Gay's third technician had told him that it would be the next morning before the fire alarm/system panel could be repaired. Mr. Sweeney and Mr. Wilson advised Mr. Doran that the situation was unacceptable. They instructed Mr. Doran to call W. W. Gay and tell that company to return and fix the panel immediately. Mr. Doran made the phone call, but as it ultimately turned out, the fire panel could not be fixed that night because a part had to be ordered. The facility had in-place a three-tiered system of evacuation in case of fire. First, residents in the room where the fire is located and those in the two adjoining rooms would be moved to safety. Second, if the fire continued to spread, all residents on the side of the fire doors where the fire was located would be moved to the other side of the doors and the fire doors closed. Third, and only if the fire were still not contained, would the residents be moved out of the building through the stairwells. The control panel of the fire alarm system is the "brains" of the facility's fire safety system. It has a direct connection to the local fire department and provides the fire department with direct, immediate notification if there is a fire in the facility. It provides immediate notification to the residents and staff of the facility through the sounding of bells, chimes, strobes, etc., of the existence of an emergency. It operates the smoke detectors. It automatically shuts down the air conditioning unit to prevent the spread of carbon monoxide, smoke, and fumes throughout the facility, and it automatically locks and unlocks the fire doors. It is the transfer of smoke and toxic gases generated during a fire which is the most common cause of casualty. The continued operation of the air conditioning system during a fire could make the lateral transfer of residents to another compartment on the same floor (tiers one and two of the facility's fire safety plan) ineffective because the continued operation of the air conditioning system could still transfer gases and smoke throughout the facility. However, in this case, although the facility's air conditioning system does move air, smoke being carried throughout the building was unlikely, since the intakes were located in common areas where smoke would be detected by staff. Fire drills are held by Respondent at least monthly. Staff is trained to respond to fires by Scott Fogg, a facility employee who has 23 years' United States Navy experience in training to fight fires, watching for fires, and fighting fires. Mr. Fogg has personally fought over 30 fires. He orients each new employee for at least one and one-half to two hours. He also does annual training of staff. Part of the training provided by Mr. Fogg consists of going step by step through the facility's fire plan. The plan includes contacting the fire department. Once the charge nurse knows of a fire, it is her responsibility to call "911." The facility's plan requires that the charge nurse notify the fire department, regardless of whether or not the alarm system is functioning.1/ The facility's fire plan is kept at several locations, including in the possession of the charge nurse and at the nurses' station. Every individual who goes through orientation also receives a copy. There is a sprinkling system for the entire facility. The sprinkling system is not dependent on the alarm system functioning. Each resident's room has at least two sprinklers, and some rooms have three sprinklers. The bathrooms inside the residents' rooms have an additional sprinkler. The dining room, halls, common area, and stairwells have sprinklers. There are fire extinguishers located at each corner of the building and fire hoses on the walls. Mr. Fogg evaluates the monthly fire drills. If he notes a problem, he writes it up and does follow-up training. The building is made of concrete, and nonflammable paint is used. Smoking is not permitted in the facility building. Staff are required to smoke in a designated smoking area behind another building. Residents are not allowed to keep combustible materials in their rooms. The kitchen and laundry are located in another building. Evacuation routes are posted throughout the building. Upon learning at approximately 4:00 p.m. January 27, 2003, that the fire alarm/system could not be fixed that night, Messrs. Wilson and Sweeney instructed Mr. Doran to institute a one-hour fire watch. A fire watch involves dedicating an individual to go around the building at stated intervals (in this case, hourly) looking for potential fire, smoke, or fire risk. Mr. Sweeney is the facility's Executive Director. He is also a licensed nursing home administrator. Based on his 25 years of experience in health care and his knowledge of the properties of the facility's physical plant, he thought a one- hour fire watch was reasonable and appropriate. Mr. Wilson, the facility's Health Services Administrator, concurred. Respondent's security man, Ron, was instructed to perform the hourly fire watch. Mr. Doran walked Ron around the area and told him to use his eyes, ears, touch, and sense of smell to look for any signs of fire. Ron carried a cell phone so that he could quickly communicate with Messrs. Doran, Wilson, Sweeney, or the fire department, if necessary. There is no evidence that Ron failed in his instructed duties for an hourly fire watch. Most of the survey team returned about 7:00 a. m., on January 28, 2003. At approximately 8:30 a.m., another team member, Nicholas Linardi, AHCA's Life Safety Inspector, arrived at the facility for the first time. Mr. Doran met with Mr. Linardi in the administrative conference room at around 9:00 a.m. There is no dispute that the first order of business was Mr. Linardi's review of all of the facility's service and safety logs. Mr. Fogg was also present at that time. After this point, there are significant differences among the witnesses' respective testimonies as to the chronology of events and the time span involved. However, having weighed the credibility of the respective witnesses, it is found that no later than their arrival on the second floor skilled nursing unit at approximately 9:30 a.m., January 28, 2003, Mr. Doran told Mr. Linardi that there was a problem with the fire alarm panel/system. How clear Mr. Doran was in this first explanation of the extent of the problem or how much or how little of Mr. Doran's explanation Mr. Linardi appreciated at that time is not clear from the record, but Mr. Linardi inquired concerning what the facility was doing about solving the problem, and Mr. Doran told him. Mr. Linardi requested that Mr. Doran call W. W. Gay again. Mr. Linardi did not require that the facility shut off the air-conditioning, pending repair of the fire alarm system. He did not offer any immediate suggestions as to additional actions the facility staff should take to protect its residents. He did not state that the facility should increase the frequency of the fire watch. There also is no clear evidence that he told anyone at that time that the facility must notify the local fire department that the panel/system was inoperative. Mr. Linardi's testimony was clear that when he is on a facility's premises, he is one of the appropriate persons or entities to whom AHCA expects the facility will report a fire alarm/system malfunction, but he was also adamant that rigid enforcement of "tags and fire standards," means that the facility is required to report any malfunction to the local fire authority, in this case, to the St. Johns County Fire Department. It is Mr. Linardi's practice to issue a survey citation, regardless of the reason a fire alarm is out of commission. The rest of AHCA's survey team first became aware of the extent of the problem with the fire alarm system at approximately 2:45 p.m., on January 28, 2003, when Mr. Linardi conducted a fire drill in the facility for purposes of AHCA’s survey. During the fire drill, it became evident to the AHCA survey team that the alarm did not sound and the fire doors did not automatically close. During the fire drill, staff members had to yell out information to alert other staff members that there was a fire drill and to identify the location of the "pretend" fire. If the fire alarm system is working, it automatically closes the correct doors. If it is not working, staff members do not know which doors to close until told where the fire or pretend fire is, but during the fire drill, it took facility staff only four and one-half minutes to realize that the correct fire doors had not closed and to go to the north corridor to manually shut them. In general terms, Mr. Linardi felt that an incipient fire can start and be transferred throughout a facility within four minutes. He did not specifically discuss Respondent's facility. No one testified to what the response time should have been if an alarm had sounded. Beyond what could at most have been a half-minute response delay due to the absence of a functioning alarm, AHCA apparently found no fault with the staff's response to, and conduct of, the fire drill. Mr. Linardi was, in fact, complimentary of the results. After the fire drill on January 28, 2003, Mr. Linardi personally called W. W. Gay and verified that the part necessary to fix the panel/system was on order. Still later in the afternoon, Mr. Linardi notified the St. Johns Fire Marshal that Respondent's fire alarm system was not in service. The St. Johns Fire Marshal directed that the facility institute a 15-minute fire watch. Respondent immediately instituted the 15-minute fire watch on January 28, 2003. Mr. Linardi testified that he was concerned that the Fire Marshal's assigned fire watch frequency of 15 minutes was too liberal and that a fire watch perhaps should have been instituted at even shorter intervals, but since the regulations presume that the local authority shall set the protocol for fire watches, he said nothing. There was some surveyor commentary to the effect that laundry carts "stored" in Respondent's hallway near one of the exits to the stairs violated survey criteria and aggravated danger to residents, but Mr. Linardi conceded that laundry carts could legitimately be rolled through hallways as linen goods were transported in them from the linen closet to each resident's room. It was his opinion such carts should have been parked in residents' rooms for any extended period of time. No accurate measurements of acceptable time or unacceptable time that these carts remained in the hallways was advanced by any witness, so this survey criticism is not indicative of a citable flaw. A chair was found on the landing at the top of one of the two exit stairwells. The landing and stairwell are large. The chair was not blocking the door leading onto the second floor landing from the skilled nursing unit. The chair's location would not have prevented an ambulatory person or a person on a cane, assisted by another, from descending via the stairs. The only obstruction the chair might have represented would have been if a patient had to be carried on a stretcher or litter and the stretcher or litter had to be turned by two people on the landing. Mr. Linardi commented that actual egress was not at issue, but because survey criteria specifically prohibit furniture or any other object from being there, the chair's presence on the landing was still a citable offense. Renovations were ongoing in the facility during this period, and construction workers had temporarily stored some of the construction materials that they were using in the bottom recess of an exit stairwell. These supplies were stored without permission or knowledge of facility staff. The bottom of the stairwell is a large open area, 22 feet long by 10 feet wide. Most of the construction materials were stored beneath the stairs and were not blocking either a step down from the stairs or access to the outside exit door. However, one piece of flat molding protruded in front of the exit door, and had the potential of impeding egress. Although there was testimony that this molding could have been easily stepped over, the photographs make clear that this item could have impeded the speed of an evacuation of the above-described frail, elderly and non-ambulatory population if an evacuation had been necessary. There is no persuasive evidence that a hinge on any exit door prevented its being opened or that any exit door was otherwise unreachable or otherwise out of commission. During the 15-minute fire watch on the third day of the survey, January 29, 2003, Ron (See Findings of Fact 13, 32, and 42) found a tray on top of the juice machine in the beverage area of the facility’s dining room and removed it. This area is within three feet of a sprinkler head and within six feet of a fire extinguisher. The juice machine has thermal overload protection to prevent electricity going to the motor if the motor gets hot. In short, if the motor gets hot, the machine cuts off. When the surveyors arrived on that date, a number of residents and staff members were in the dining room. The surveyors noted an odor similar to that of a burning motor in the vicinity of the juice machine. At that time, the tray had already been found and removed as part of the 15-minute fire watch. When a motor overheats, the smell lingers for a long time. There is no evidence that the incident did more than produce an unpleasant odor. AHCA gave Respondent a written mandated correction date of February 6, 2003, but before the survey team finally exited on January 29, 2003, the facility had changed the fire watch to every 15 minutes and had advised that the fire alarm system would be operational on January 30, 2003. Therefore, AHCA removed the "immediate jeopardy" classification on January 29, 2003, prior to the end of the survey, when it determined that fire watches were being conducted every 15 minutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of, it is RECOMMENDED that the Agency for Health Care Administration enter a final order Finding Respondent guilty of a single, isolated Class III deficiency, fining Respondent $1,000.00 therefore, and removing Respondent's conditional licensure status; and Remanding to the Division of Administrative Hearings the issue of the amount of any costs related to the investigation and prosecution of these cases, pursuant to Section 400.121(10), in the event the parties cannot stipulate to those costs. DONE AND ENTERED this 13th day of November, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 13th day of November 2003.
