The Issue The issues to be resolved in this proceeding concern whether the Respondent should be subjected to disciplinary sanctions based upon alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes, by engaging in the business or capacity of a general contractor, and as an electrical or alarm system contractor, without being certified or registered.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating and enforcing the statutes and rules pertaining to the licensure and practice of contracting, including construction contracting and electrical contracting. The Petitioner is also charged with regulating and enforcing statutes concerning the unauthorized practice of such contracting, including practicing without proper certification or registration. At all times material hereto the Respondent, Kevin Davidson, d/b/a Wise and Davidson Construction and Davidson Contracting and Construction (Davidson or Kevin Davidson) was not licensed, certified or registered to engage in construction contracting or any electrical or alarm system contracting in the State of Florida. On or about December 21, 2004, the Respondent, doing business as Davidson Contracting and Construction, contracted with Mr. Hanson, a witness for the Petitioner, to install and erect a 50-foot by 60-foot by 17 and one-half foot airplane hanger on a concrete foundation. He also contracted to install a 200 amp electrical panel box on Mr. Hanson's property in conjunction with construction of the building. The property was located in Morriston, Florida. The contracted price for the work described was $47,597.30. Mr. Hanson paid the Respondent the total of $20,514.30 as part of the contract price. The Respondent never finished the project, but only laid the concrete foundation. At the insistence of the Respondent, Mr. Hanson rented a backhoe which the Respondent agreed to operate in constructing a driveway. The work was never finished, and Mr. Hanson had to obtain other help in constructing the driveway. The Respondent also damaged the rented backhoe while he was operating it. These factors caused Mr. Hanson an additional economic loss of $4,830.38. On or about December 13, 2004, the Respondent, doing business as Wise and Davidson Construction, contracted with Ms. Crowell, a Petitioner witness, to install and erect a 50- foot by 60-foot by 17 and one-half foot steel building on a concrete foundation, also in Morriston, Florida. The Respondent also contracted to install a 200 amp electrical panel box in conjunction of construction of that building. The total amount of the contract price was $47,047.30. Ms. Crowell paid the Respondent at least $35,251.35 in partial payment for the contract. After laying the foundation, however, the Respondent abandoned this project as well. The Respondent's abandonment of the project cost Ms. Crowell $29,943.00 in additional economic damage in order to obtain completion of the project by another contractor. The Department incurred certain investigative costs in prosecuting these two cases. It was thus proven by the Petitioner that the Department expended $510.06 for the prosecution of DOAH Case No. 06-2308. The Petitioner also established that it spent the sum of $944.13 in costs for Case No. 06-2307. This represents total investigative costs expended by the Agency of $1,454.19, for which the Petitioner seeks recovery. The Petitioner is not contending that any attorney's fees are due.
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 Department of Business and Professional Regulation enter a final order determining that the Respondent has violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the earlier-filed Administrative Compliant in Case No. 06-2308, and impose an administrative fine in the amount of $5,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and an administrative penalty of $5,000.00 with regard to the electrical contracting violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that the final order determine that the Respondent is guilty of violating Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the later-filed Administrative Complaint in Case No. 06-2307 and that an administrative fine in the amount of $10,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and that an administrative penalty of $5,000.00 be imposed for the electrical contraction violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that costs be assessed against the Respondent for investigation and prosecution of both cases, not including costs associated with attorney's time and efforts, in the total amount of $1,454.19, payable to the Petitioner Agency. DONE AND ENTERED this 15th day of November, 2006, 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 15th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kevin Davidson Post Office Box 131 LoveJoy, Georgia 30250 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 Respondent violated provision of Chapter 75-489, Laws of Florida, as amended, as more specifically alleged in Counts One through Four of the Administrative Complaint dated August 10, 1992 and the First Amendment of the Administrative Complaint, dated November 9, 1992.
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed by the Petitioner as an electrical contractor. Respondent holds license EC 0002526. Respondent does business as M. H. Electrical Services (M. H. Electrical) at 11512 41st Court North, Royal Palm Beach, Florida. Petitioner is the agency of the State of Florida charged with regulating the practice of construction contracting in the State of Florida pursuant to the provisions of Section 20.165, Chapter 455, and Part II of Chapter 489, Florida Statutes. On May 15, 2007, M. H. Electrical, though the Respondent, drafted a proposal for electrical services to be done on a residence being constructed by Mr. Malone. The location of the residence is 1664 88th Road North, Royal Palm Beach Acreage, Florida. The contract price totaled $5,140.00. Work on the project commenced on May 17, 2007. There were many problems with the work performed by Respondent’s company that were ultimately corrected by Mr. Malone. Respondent’s workmen installed 15 “12 gauge” wires in a 3/4 pipe underground that was inconsistent with the applicable building code. Respondent’s workmen installed a pipe running from one electrical panel to another incorrectly. Respondent’s workmen wired attic fans in a manner that overloaded an electrical panel. Respondent’s workmen installed a ground rod of only three and a half feet. The applicable building code required a ground rod of eight feet. A kick plate is a metal piece that protects electrical wires from being pierced when sheetrock is being installed. Petitioner asserted that Respondent failed to install kick plates. Respondent’s testimony established that kick plates were not necessary due to the depth of the wall studs that were utilized. Respondent’s workmen installed two wires incorrectly in the laundry room of the house. The wires were cut, which caused a fire hazard. Petitioner did not establish that Respondent’s workmen cut the wires. Respondent’s workmen failed to properly ground whirlpool tub wires for two whirlpools by failing to ground the wires to the main pipe as required by the applicable building code. The work did not progress as contemplated by Mr. Malone and by Respondent. As owner of the premises, Mr. Malone called for all inspections of the electrical work. These inspections were performed by employees of the Palm Beach County, Florida, Planning, Zoning and Building Department (the County Building Department). The following is the inspection history between May 21 and October 10, 2007: Temporary Power scheduled for May 21 was cancelled. Temporary power on May 22 passed. Rough electric on June 8 failed. Rough electric on July 9 passed. Rough electric on October 10 failed. The progress of the work was impeded for two primary reasons. First, the testimony of the Respondent, which the undersigned finds to be credible, established that on more than one occasion Mr. Malone did not have necessary materials at the building site. Second, Respondent fired the lead electrician on the subject project approximately two weeks into the project. Following communications with an employee of Florida Power and Light (FPL), Mr. Malone determined that portions of the work performed by Respondent’s employees did not meet the applicable building code. The record is not clear whether this communication occurred before or after the passed inspection on July 9. The last date on which one of Respondent’s employees worked on the project was July 23, 2007. Mr. Malone paid M. H. Electrical the full contract price on July 25, 2007. Mr. Malone and Respondent had a conversation about the communication with the FPL employee. Mr. Malone refused to tell Respondent the name of the FPL employee who stated that some of the work did not meet code. The date of this conversation was not established. Mr. Malone testified that when he paid Respondent on July 25, he believed that a list of ten items needed to be repaired. Mr. Malone further testified that he paid Respondent before these items had been repaired because he believed that Respondent would return to make all necessary repairs. The undersigned finds this testimony to be credible. As of July 25, 2007, when payment was made in full, Respondent knew or should have known that there existed on this project a list of repairs to the electrical wiring that needed to be done. After July 25, 2007, Mr. Malone made repeated efforts to contact Respondent. In response to those calls, Respondent sent an employee to the site to discuss Mr. Malone’s concerns. A locked gate prevented that employee’s entry on the building site. The date of that event was not established. On or before October 10, 2007, Mr. Malone requested another inspection from the County Building Department. That inspection failed. A failed inspection means that there were one or more deficiencies that had to be corrected before the job could progress. The inspector posted a Correction Notice, which advised that the following needed to be done before the job would be accepted: a smoke detector in the master bedroom would have to be relocated to a higher part of the ceiling; a conduit would have to be rerun (this is the deficiency described in paragraph 5 of this Recommended Order); and a ground rod would have to be replaced (this is the deficiency described in paragraph 8 of this Recommended Order). On October 11, 2007, two of Respondent’s employees went to the building site to make any needed corrections. Mr. Malone refused to let the employees on the property. Respondent did not return any of the funds paid by Mr. Malone. Respondent did not terminate the contract. Mr. Malone made all necessary electrical repairs. On April 2, 2008, the project passed final inspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violation alleged in Count I of the Administrative Complaint and not guilty of the violation in Count II. It is further RECOMMENDED that for the Count I violation, the final order issue a reprimand to Respondent and impose an administrative fine against Respondent in the amount of $1,000.00. DONE AND ENTERED this 20th day of October, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 October, 2009.
The Issue Whether the Respondent failed to provide proof of workers' compensation coverage or exemption, and proof of having completed 14 hours of approved continuing education in response to an audit conducted by the Electrical Contractors Licensing Board for the biennium commencing September 1, 1996, and terminating on August 31, 1998, in violation of Subsection 489.533(1)(o), Florida Statutes, by violating Subsections 489.515(3) and 489.517(3), Florida Statutes, and Rule 61G6- 9.011, Florida Administrative Code, as alleged in the Amended Administrative Complaint.
Findings Of Fact The Petitioner is the State of Florida, Department of Business and Professional Regulation (DBPR), the state agency charged with regulating the practice of electrical contracting in Florida and those licensed under Chapter 489, Florida Statutes, pursuant to Section 20.165, and Chapter 455, Florida Statutes. The Respondent is, and has been at all times material to the allegations in the Amended Administrative Complaint, an electrical contractor licensed by the Electrical Contractors Licensing Board. From 1987 until 2000, the Respondent was a registered electrical contractor, holding license number ER 0010816. Since August of 2000 the Respondent has been a certified electrical contractor holding license number EC 0002356. The Respondent's practice pursuant to his registered license was a prerequisite to issuance of his certified license. All insurance and continuing education requirements for renewal of a license issued by the ECLB are set forth in Sections 489.515 and 489.517, Florida Statutes, as well as Rule 61G6-9.004, Florida Administrative Code, and are identical for certified and registered electrical contractors. In March of 1999 the ECLB conducted a random audit of the insurance and continuing education requirements established in Rule 61G6-9.004, Florida Administrative Code, for the biennium commencing September 1, 1996, and terminating August 31, 1998. The Respondent was one of the licensees randomly chosen for this audit. In response to the initial audit letter sent to the Respondent on March 17, 1999, the Respondent submitted insurance and continuing education documentation. This documentation reflects: no evidence of workers' compensation coverage or exemption for the audit period; no evidence of approved continuing education for the audit period; and no evidence of required liability insurance for the audit period. The continuing education documentation submitted by the Respondent was for the prior biennium, in February 1996. On July 19, 1999, the ECLB forwarded the Respondent a follow-up letter, indicating that he was still lacking the documents enumerated in Finding of Fact Number 5. In response to this letter, the Respondent submitted documentation of the required liability insurance and of workers' compensation for May 1, 1997 through June 22, 1999. At hearing, the Respondent produced a document similar to those previously provided to the DBPR documenting his workmen's compensation insurance from March 1, 1995 to May 1, 1997. The date of this document was the same as the date on the materials previously furnished to DBPR. The Respondent testified that his insurance agent had faxed the requested documents to DBPR and sent copies to him. He received all of the documents substantiating his insurance from May 1, 1997 until June 22, 1999. His agent presumably forwarded or faxed the same documents to DBPR. DBPR produced all the documents except the one for the period of March 1, 1995 until May 1, 1997. The Respondent provided enough information to raise a genuine question whether this document was lost by DBPR. It is concluded that it is as likely DBPR lost the record as it is the record was not sent. There was no additional documentation of the required continuing education submitted at hearing. Subsequent to the completion of the audit, the ECLB initiated a complaint with the Bureau of Consumer Services at DBPR. This complaint alleges that the Respondent failed to document required workers' compensation coverage or exemption for the entire audit period and failed to document required continuing education within the audit period. The Respondent was initially issued citations for resolution of the alleged violations herein. Each of these citations provided for a $500 administrative fine. The continuing education violation was documented as DBPR case number 2000-08338 and the workers' compensation violation was documented as 2000-05654. The Respondent chose to dispute these citations, and as a result, this matter was handled pursuant to the provisions of Section 455.225, Florida Statutes. The Respondent has failed to document completion of hours of board approved continuing education between September 1, 1996 and August 31, 1998. The Respondent failed to obtain any board approved continuing education between September 1, 1996 and August 31, 1998. In DBPR case number 2000-08338, the Petitioner incurred non-legal costs in the amount of $31.70. In DBPR case number 2000-05654, the Petitioner incurred non-legal costs in the amount of $42.47. However, this cost may not be recovered.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered imposing an administrative fine of $500 against the Respondent for Count II of the Amended Administrative Complaint. It is further recommended that the Respondent be required to pay the non-legal costs incurred by the Petitioner in both agency cases totaling $31.70. DONE AND ENTERED this 14th day of September, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2001. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 David Karably Post Office Box 12 Earleton, Florida 32631 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
