The Issue Whether Petitioner is entitled to additional credit for his responses to Question No. 130 of the Principles and Practice of Engineering portion of the engineering licensure examination administered on April 23, 1999, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Petitioner, Dennis Vann (Petitioner), is an applicant for licensure as a professional engineer in the State of Florida. On April 23, 1999, Petitioner sat for the Principles and Practice Engineering Examination portion of the engineer licensure examinations. This is a national examination developed, controlled, and administered by the National Council of Examiners for Engineering and Surveying (NCEES). Petitioner received a raw score of 45 on this examination. For the electrical engineering discipline, a raw score of 45 results in a converted score of 67. A minimum converted score of 70 is required to pass this examination. A raw score of 48 results in a converted score of 70. Therefore, Petitioner needs an additional 3 raw score points to earn a passing score on the examination. Petitioner challenged the scoring of Question No. 130 on the examination and formally requested the NCEES to rescore his solutions to the question. The NCEES rescored Question No. 130 and determined that Petitioner was not entitled to any additional points for Question No. 130. For Question No. 130, the maximum score achievable was Petitioner received a score of 4 on that item. The NCEES developed and used an Item Specific Scoring Plan (ISSP) for each examination question. Question No. 130 was scored by the NCEES according to the ISSP for that question. Question No. 130 contains two subparts, which require the examinee to address four discrete requirements. Petitioner correctly calculated the bus current (requirement 3). However, Petitioner failed to properly calculate the busway loading and determination of adequacy (requirement 1), the bus impedance (requirement 2), and percent voltage drop (requirement 4). Petitioner's response to Question No. 130 was initially assigned a score of 4. However, if graded correctly, that response would have resulted in a score of 6. The credible testimony of Respondent's expert was that under the ISSP for Question No. 130, Petitioner is entitled to a score of 6 for his response. With a score of 6 for Question No. 130, Petitioner's raw score is increased to 47. A raw score of 47 results in a converted score of 69. Even with the 2 additional points awarded to Petitioner's response to Question No. 130, his score on the professional engineering licensure examination is still below 70 and is not a passing score. Question No. 130 provides all the necessary information for an examinee to solve the problem. Moreover, Question No. 130 is properly designed to test an examinee's competence in electrical engineering.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered concluding that Petitioner is entitled to a score of 6 points for his response to Question No. 130, and recalculating Petitioner's total score on the examination on the basis of that conclusion. DONE AND ENTERED this 21st day of April, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 21st day of April, 2000. COPIES FURNISHED: Dennis Vann Post Office box 23054 Tampa, Florida 33623 William H. Hollimon, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32301-1884 Dennis Barton, Executive Director Department of Business and Professional Regulation Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
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 are as follows: (a) whether Respondents each engaged in the unlicensed practice of contracting as defined in Sections 489.105(3) and 489.105(6), Florida Statutes (2006), in violation of Section 489.127(1)(f), Florida Statutes (2006); (b) whether Respondents each engaged in the unlicensed practice of electrical contracting as defined by Sections 489.505(9) and 489.505(12), Florida Statutes (2006), in violation of Section 489.531(1), Florida Statutes (2006); and (c) if so, what penalty should be imposed.
Findings Of Fact At all times material here, Respondents were married and doing business together as "B and P Enterprises of Central Florida, Inc." The "B and P" stands for Brenda and Phillip. Respondents are not and never have been licensed to engage in contracting or electrical contracting in Florida. In March 2006, Carla Adams had recently purchased her first home and sought to refinance it. The lender required an inspection of the home. The lender also required that any work on the home be performed by a licensed person or entity. In March 2006, an inspector employed by Pillar to Post, Inc., conducted an inspection of Ms. Adams' home. The inspection report, dated March 10, 2006, listed a number of areas that needed work and made recommendations for correction of those problems. In July 2006, Ms. Adams saw an advertisement in a newspaper for the sale of a used car. Ms. Adams and Rev. Tracey Davis went to Respondents' property with the objective of purchasing a used vehicle. While on the property, Ms. Adams and Rev. Davis entered the Respondents' home. Because both women admired the home, Respondents gave them a tour. During the tour, Respondents stated that Henley had performed the work himself. While in Respondents' home, Ms. Adams and Rev. Davis told Respondents that Ms. Adams needed work done on her home. Ms. Adams also told Respondents that her lender required that the work be done by a licensee. Henley, both upon his own volition and after being asked, told Ms. Adams and Rev. Davis that he was a licensed contractor. Henley removed a picture-ID card from his wallet and stated this was his license to practice contracting. Respondent Carpenter condoned this statement. Ms. Adams showed Respondents the March 10, 2006, inspection report. Henley assured Ms. Adams that he could do everything on the report that needed to be done. Henley further stated that his license was issued by “DBPR” - the Department of Business and Professional Regulation. Carpenter affirmatively agreed with this statement. Henley warned Ms. Adams that she should never have work done by anyone that was not licensed or certified and that she could check licensure status with DBPR. Respondent Carpenter affirmed this warning. Before speaking with Respondents, Ms. Adams and Rev. Davis had never heard of DBPR. It was only due to Henley’s reference to DBPR that Ms. Adams knew she could contact Petitioner regarding the issues in this case. Respondents advised Ms. Adams that they were willing to go to Ms. Adams’ home and give her an estimate of what they would charge to perform the needed work. Ms. Adams and Rev. Davis left Respondents' property expecting to see Respondents in the near future. In August 2006, Respondents went to Ms. Adams’ home in Tallahassee, Florida. Ms. Adams told Respondents she needed electrical, structural and plumbing work done as set forth in the Pillar-to-Post report. Respondents then inspected the home, took measurements, and made a verbal offer to perform the needed contracting work. Respondents returned to Ms. Adams’ home later in August 2006. At that time, Respondents presented Ms. Adams with a written estimate of what they would charge to do certain contracting work on her home. The proposal included, but was not limited to, structural, plumbing and electrical work. Respondents' proposal stated as follows in relevant part: REMOVE ALL OLD FLOOR COVERING Carpet Padding Lineoleum (sic) Square Stick tile Tack strip All of the above, but not limited to just above 1,470 Sq. Ft. @ $1.10 Sq. Ft. INSTALL NEW FLOOR COVERING 1,470 Sq. Ft. of tile on floor @ $1.75 Sq. Ft. and install Durarock (sic) or hardi (sic) backing board, if needed KITCHEN Remove wall and old 1/2 bathroom and put back to finished product Not including finishing drywall and painting drywall Remove all old plumbing and re-route Electrical wires HALL BATHROOM Remove bathtub, and tub walls Install durarock (sic) and new plumbing fixtures [a]s provided by homeowner Install 100 Sq. Ft. of wall tile around old tub area @ $1.75 Sq. Ft. [m]aking a new shower in the room Build a curbing, and drypack and install shower floor tile Install drain and rubber pan REMOVE OLD RAILING FROM FRONT PORCH The total price listed for the above referenced work was $5,234.50. Ms. Adams had received other estimates for the work. Therefore, Ms. Adams was pleased with the price and sought assurance that it would not increase. Respondents promised Ms. Adams that the cost would not increase. To further assure her, they both signed the contract in her presence. During the hearing, Henley admitted that he contracted with Ms. Adams to perform the labor as listed on this contract. In an attempt to ascertain Henley’s skill as a contractor, Ms. Adams decided to begin with the renovation of the bathroom located in the entrance way to the master bedroom. Ms. Adams agreed to buy the construction, plumbing, or electrical materials that Henley needed to do the work. Ms. Adams works two jobs and was not always home when Respondents performed the contracted work. As a result, Rev. Davis, who lived nearby, was present at the home to let Respondents in and observe the work. In order to enlarge the bathroom adjoining the master bedroom, Henley demolished a wall between the old bathroom and a walk-in closet. Henley also removed the door into the old bathroom and constructed a single wall with the entrance to the enlarged room through the door to the old closet. In the course of this alteration and expansion, Henley damaged the adjoining wall to the living room. He subsequently repaired the damage. In the enlarged bathroom, Henley removed a sink from the old bathroom area and installed it in the area that had been a closet. The area of the old closet had no plumbing. The removal and installation of the sink required Henley to remove old piping and replace it with larger pipes to increase the water flow. During the hearing, Henley admitted removing the sink and disconnecting the plumbing. Henley installed the custom-built shower as described in the contract in Ms. Adams’ bathroom. During the hearing, Henley admitted cutting a hole in the floor of Ms. Adams’ bathroom and installing a shower drain pan. Henley removed and replaced the toilet in Ms. Adams’ bathroom. Additionally, Henley, with Carpenter's help, removed the old bathtub. Henley admitted removing the bathtub and disconnecting the plumbing. Henley then installed a replacement Jacuzzi bathtub at the location of the previously-removed bathtub in Ms. Adams’ bathroom. Henley had to remove the old piping and replace it with larger pipes to increase the water flow for the replacement Jacuzzi. The toilet, sink, and bathtub removal and the shower- installation required plumbing work that made it necessary to turn off the water to the home. During the course of installing the Jacuzzi bathtub, Henley discovered that his work resulted in drainage problems he could not correct. For the first time, he told Ms. Adams that his license did not allow him to perform plumbing work. Henley then told Ms. Adams that, as the contractor on the job, he could subcontract the needed plumbing work. In early September 2006, Henley called Roto-Rooter as a plumbing subcontractor. Roto-Rooter performed the following plumbing work at Ms. Adams' home: Hooked up all the basic [drain] lines and the toilet in new bathroom to the m/l [main line]. Also ran water lines for the new sink, but found problem with shower valve. It was put in wrong and will not work until it's moved. Note: Everything else is working at this time. Price includes parts and labor. ( * * * out the tile and fix shower valve, not everything is working.) The Roto-Rooter invoice indicates a total cost in the amount of $1,432.78 for the work performed in Ms. Adams' home. Ms. Adams and Respondents had a financial dispute about which party had to pay Roto-Rooter. The dispute ultimately led to a falling out regarding the completion of the contracted work. Ms. Adams’ bathroom currently is inoperable because the toilet and Jacuzzi bathtub do not work. There is raw sewage underneath her home. In order to repair her bathroom, Ms. Adams received an estimate of approximately $5,000.00. Ms. Adams’ decision to begin with the renovation of her bathroom also involved ascertaining Henley’s skills as an electrical contractor. Based on his assurances that he could do the work, Ms. Adams allowed Henley to remove and relocate electrical light fixtures and switches in the bathroom, closet, and hallway. During the course of this work, Henley left hot wires exposed. On or about September 14, 2006, Carpenter came to Ms. Adams’ home and presented an invoice for $1,200.00 for the contracted work that had been performed pursuant to the initial contract. The invoice was on the letter head of “Brenda & Phillip, Phillip Henley, Inc." It stated as follows in relevant part: Remodel Master Bathroom Take out all fixtures-sink, cabinet, cast iron tub, toilet and replace with new Jacucci (sic) tub, new sink and cabinet, new shower and put back old toilet. Take out old tile on walls and drywall, take out two closets to enlarge bathroom. Re-wire and re-plumb all fixtures and installed durarock (sic) on floor, walls and wet areas and installed blueboard on balance of walls. Built a custom shower and installed custom tile design on walls and floor. Cost: $1,900.00 Less cash advances: 8/9 $100 8/16 $300 8/22 $300 $700 -700.00 $1,200.00 Plus: Materials & receipts: 8/11 $ 81.19 8/17 23.67 8/19 26.84 8/24 108.51 $240.21 +$240.21 Balance Due: $1,440.00 Other labor -240.00 $1,200.00 The invoice was signed by Henley and Carpenter and included the following statement: "Thank you for doing business with Brenda & Phillip!" The invoice stated that the check should be payable to Carpenter. Excluding costs associated with an attorney's time, Petitioner has expended $554 in total cost relative to the investigation and prosecution of DOAH Case No. 09-2541 against Carpenter and $1,005.67 in total cost relative to the investigation and prosecution of DOAH Case No. 09-2545 against Henley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that each Respondent violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes, imposing a total administrative fine in the amount of $11,000 against each Respondent, and assessing costs in the amount of $554 against Carpenter and $1,005.67 against Henley. DONE AND ENTERED this 23rd day of February, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 23rd day of February, 2010. COPIES FURNISHED: Maura M. Bolivar, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Brenda Carpenter Phillip Henley 5209 Southwest U.S. 221 Greenville, Florida 32331 Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
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 At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455 and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Antoney Manning was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. At all times material to the allegations of the Administrative Complaints, Manning Builders did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Antoney Manning, was at all times material to this proceeding, the owner/operator of Manning Builders. Respondent is in the business of framing which includes framing, drywall, tile, trim work, and painting. A document which is in evidence purports to be a contract dated September 5, 2004, between Manning Builders and Ms. Gwendolyn Parker, for the construction of a 14-foot by 14- foot addition in the rear corner of Ms. Parker's house located at 8496 Southern Park Drive in Tallahassee, Florida. The contract identifies Manning Builders as the "contractor." The contract price is $15,000. Unfortunately, only the first page of the contract is in evidence. However, Respondent acknowledges that he and Ms. Parker entered into a contract regarding the 14-foot by 14-foot addition to Ms. Parker's home. Respondent insists that he informed Ms. Parker that he was not a certified general contractor, but that he could find a general contractor for her. When that did not work out, Respondent told Ms. Parker that she would have to "pull" her own permits and that he could do the framing. He also told her that he would assist her in finding the appropriate contractors to do the electrical work, plumbing, and roofing. Ms. Parker did not testify at the hearing. On September 7, 2005, Respondent signed a receipt for $7,500 for a "deposit on addition (14 x 14)." The receipt identifies Ms. Gwendolyn Parker as the person from whom the money was received by Respondent. Respondent acknowledges finding an electrical contractor to perform the electrical work on the addition. However, he insists that he did not hire the electrical contractor but found one for Ms. Parker to hire. He gave the name to Ms. Parker but she apparently did not contact him. In any event, the electrical work was never done on the addition. Respondent completed the framework on the addition. Respondent did not build the roof, as he was aware that would require a roofing contractor. Work on the project ceased before the addition was finished. Ms. Parker's home suffered rain damage as a result of the roof not being completed. There is nothing in the record establishing the dollar amount of damage to her home. The total investigative costs to the Department, excluding costs associated with any attorney's time, was $360.59 regarding the allegations relating to Case No. 06- 0601, which charged Respondent with the unlicensed practice of contracting. The total investigative costs, excluding costs associated with any attorney's time, was $140.63 regarding the allegations relating to Case No. 06-0602, which charged Respondent with the unlicensed practice of electrical contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1); requiring Respondent to pay $360.59 in costs of investigation and prosecution of DOAH Case No. 06-0601, and dismissing DOAH Case No. 06-0602. DONE AND ENTERED this 28th day of June, 2006, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS 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 28th day of June, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Antoney Manning 11865 Register Farm Road Tallahassee, Florida 32305 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Petitioner was born on March 14, 1960. At the time of this hearing he was 22 years old. Petitioner moved to Florida from Arkansas in March, 1981, and subsequently applied for and was issued a State certificate as a general contractor in February, 1982. While in Arkansas, Petitioner obtained a license as a master electrician (Exhibit 1) and his company, American Enterprise Electric, was licensed as an electrical contractor (Exhibit 2). The electrical contractors' license was obtained without examination, as Petitioner was doing electrical contracting when the Arkansas licensing law was passed in 1979. Petitioner started working for his father, a general contractor in Arkansas, at an early age and was doing electrical work in his early teens. He took over the electrical end of his father's contracts, prepared bids, supervised, and did most of the electrical wiring on several apartment buildings, office buildings, and single family residences through his late teens. In 1978 Petitioner started his own business as an electrical contractor in Arkansas. He subsequently added air conditioning and electronics work. Operating as Allgood Electric, Petitioner did the electrical work on residences, apartment buildings and office buildings in which others were the general contractor. In his application, Exhibit 4, Petitioner dates 3/30/78 as the start of his electrical contracting company. The last job reported on Exhibit 4 is dated 9/1/80, shortly before Petitioner moved to Florida. From 3/7/78 through 9/1/80 Petitioner lists on Exhibit 4 a total electrical contractor dollar value of $60,000 with two of these jobs accounting for $35,000. Petitioner holds no local license as an electrician or electrical contractor. No evidence was presented of the electrical contracting done by his company in Florida, although he testified he has a qualifying agent to allow his company to do electrical contracting.
Findings Of Fact In February of 1990, the Petitioner filed an application to take the unlimited electrical contractor examination. To be eligible to take the examination, it was necessary for the Petitioner to demonstrate that he had at least three years of management experience in the field of electrical contracting. The information in the application and the evidence submitted at the hearing demonstrate that the Petitioner has had more than three years of experience in the field of electrical contracting. However, the information in the application and the evidence submitted at hearing are insufficient to demonstrate how much, if any, of that experience was "management experience in the trade." 1/
Recommendation On the basis of all of the foregoing, it is recommended that the Electrical Contractors' Licensing Board enter a Final Order in this case denying the Petitioner's application to take the licensure examination. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of September 1991. MICHAEL M. PARRISH 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 30th day of September 1991.
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
