The Issue In this disciplinary proceeding, the issues are: Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued by Petitioner; and Whether disciplinary penalties should be imposed on Respondent if Petitioner proves one or more of the violations charged in its Amended Administrative Complaint.
Findings Of Fact Respondent, Bobby Serota ("Serota" or "Respondent"), was issued license number EC 1485 by Petitioner. He has been an electrician for over 60 years. Serota was first licensed in Florida on April 16, 1994. Serota's license expires on August 31, 2012. Approximately 10 years ago Serota opened a company, Academy Electric Inc. The company provides electrical types of installation work for commercial, industrial, and residential clients. Serota is the qualifier for Academy Electric. Inc. and the company is named on Respondent's electrical contractors' license. In January 2007, Serota answered an advertisement2 in the Sun Sentinel for an "Exp Master 5-10 yrs $30hr start+profit sharing" by submitting his resume. Rescue Me Electrician, LLC ("Rescue Me") hired Serota as a project manager employee. Rescue Me is not licensed to perform electrical contracting in the State of Florida. Serota accepted the job with Rescue Me knowing the company was not licensed to practice electrical contracting in the State of Florida. Serota accepted the position and informed the owners that he would help them establish their business in Florida. Thomas Sheats ("Sheats") is the homeowner of a residence at 14501 Old Sheridan Street ("residence"). Sheats contacted Rescue Me for a price quote to perform electrical work to fix his residence which was damaged by Hurricane Wilma. In March 2007, Renaldo Morales ("Morales"), the owner of Rescue Me, sent Serota to Sheats' residence to evaluate the cost, time and materials required to complete the job. Sheats provided Serota a rough sketch of the work. Serota informed Sheats a better set of plans was needed to fully evaluate the job because the rough sketch was incomplete, but he would provide a price based on what he thought the work involved for the residence restoration. On or about March 13, 2007, Sheats entered a Home Improvement Contract with Rescue Me for residential restoration "as per the updated 'rough' draft."3 The contract listed the parties as "Rescue Me Electrical, LLC 'DBA' Academy Electric ('Contractor') and Mr. and Mrs. Tom Sheat[s] ('Owner')."4 Serota witnessed and initialed the changes in the contract that Sheats made to the terms in the payment schedule and down payment sections. The total contract price was $15,000.00. Serota's license number EC 1485 and Rescue Me Electrician, LLC appeared at the top of the contract. Morales signed the final contract with Sheats. On or about March 14, 2007, Sheats paid Rescue Me a deposit of $7,500.00, 50 percent of the restoration project costs. Sheats gave the check to Serota. Sheats obtained and paid for all the building permits for the residential restoration. After the contract was signed, Serota made several trips back and forth to Sheats' residence attempting to get a complete set of plans and to check on the progress in order to determine when the electrical work could begin. Once the roof was closed in, Sheats allowed Serota to go in and start doing rough electrical installation. In August 2007, Rescue Me began the electrical work at the Sheats residence earlier than Sheats wanted by installing the receptacle boxes and wiring between them. Rescue Me completed approximately 25 to 35 percent of the work. However, the parties came to a standstill at some point and could not agree on how to move forward on the electrical job. On or about September 7, 2007, Rescue Me could not proceed without changes and Serota sent proposed changes by fax to Sheats, including costs and what was involved to complete the work. The fax heading included Rescue Me named as the company and Serota's license number EC 1485.5 Sheats disagreed with the proposed changes. On or about September 25, 2007, Sheats faxed Morales the following instructions: "No changes are authorized from original permit drawing and your bid. Please complete specified work in its entirety within the next 2 weeks."6 Morales and Sheats faxed back and forth regarding their differences. Serota tried to explain the different plan but Sheats refused to change very far from the original plans. Rescue Me stopped the work at the Sheats residence when it terminated Serota and paid him his last check for the week of September 13, 2007, through September 19, 2007. In October, the Rescue Me and Sheats tried to resolve their differences. On October 3, 2007, Sheats met with Rescue Me to discuss the contents of the September 7, 2007, fax. Sheats informed Rescue Me that he did not want any changes made because of the pricing and Rescue Me was to do the rough electrical as specified in the original bid. On or about October 13, 2007, Sheats sent a fax to Morales which stated: I am not paying a restart fee of any kind. I never asked you prior to our meeting on 10/3/07 to start this job. I went out of my way to accommodate you getting a "head start" in August. When you were insistent on it. I have delayed progress on the job from October 8 until October 15 to accommodate you doing another job before you started on mine. If your crew is not on the jobsite Monday 10/15/07, I shall conclude you have abandoned the job. Subsequently, I shall hire a replacement contractor and then pursue legal remedy against you for recovery of costs including the $7500 I paid you in March and attorneys fees. Tom Sheats[7] Rescue Me did not do any further work on the Sheats' residence. On October 18, 2007, Sheats paid a deposit of $5,500.00 and hired Carefree Constuction to complete the electrical work Rescue Me did not complete. Carefree Construction cashed the check on October 24, 2007. Sheats paid a second installment in the amount of $5,200.00 by check dated November 2, 2007, and the final amount of $1,000.00 on February 28, 2008, for a total of $11,700.00.8 Sheats filed a complaint with Petitioner regarding Rescue Me not completing the job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that: (a) finds Respondent guilty as charged in Count I of the Amended Administrative Complaint, imposing a notice of noncompliance and (b) finds Respondent not guilty as charged in Count II of the amended Administrative Complaint. DONE AND ENTERED this 12th day of December, 2011, in Tallahassee, Leon County, Florida. S 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 12th day of December, 2011.
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes. Respondent does business under the name South Florida Construction Group. At no time relevant to this proceeding has Respondent or his business entity been registered or certified to perform electrical contracting or any other contracting in the State of Florida. Respondent holds only an occupational license from the City of North Miami. The residence owned by the homeowners (the subject property) sustained roof damage as a result of Hurricane Wilma in October 2005. The homeowners planned to replace their damaged roof after their insurance claim had been processed. In the interim, temporary repairs were made to the roof by a roofing contractor the homeowners located through a local Home Depot, Inc., store. This roofing contractor was identified only as the Home Depot roofing contractor. The homeowners were dissatisfied with the work of the Home Depot roofing contractor. In early August 2006, Mrs. Ugokwe mentioned at a beauty salon that the Home Depot roofing contractor had failed to prevent her roof from leaking. Shortly thereafter, Respondent learned of the homeowners’ dissatisfaction with the Home Depot roofing contractor. On August 9, 2006, Respondent visited the subject property and told the homeowners that he was a general contractor. Respondent gave them his business card that contained Respondent’s name, address, telephone number, and fax number. In addition, the business card contained the name “South Florida Construction Group” underneath which were the words “State Certified General Contractors” and the following license number “CGC 1510133.” The business card advertised the following services: “Home Improvement & Repairs, New Building Construction, Residential & Commercial Pools, Asphalt Paving & Sealcoating [sic], Site Development & Drainage, and Notary Public Service.” The homeowners believed Respondent to be a licensed general contractor. Respondent and the homeowners discussed Respondent performing work on the damaged roof, including placing blue tarp on the roof (the tarp work) to prevent further leaks until the re-roofing could be completed. They also discussed the subsequent re-roofing of the property. Respondent estimated that the re-roofing would be between $30,000.00 and $33,000.00. After inspecting the subject property, Respondent told the homeowners, among other things, that an electrical connection to a pump on their drain field needed to be repaired. Respondent testified that the electrical connection had been damaged when he backed his truck up while attempting to remove some debris from the subject property. At the meeting on August 9, 2006, Respondent and the homeowners agreed that Respondent would perform the tarp work. On August 11, 2006, the homeowners paid Respondent a down- payment of $50.00 cash for the tarp work. On August 12, 2006, Respondent’s crew completed the tarp work. On August 13, 2006, the homeowners paid Respondent the sum of $659.28 for the balance of the materials and labor for the tarp work. The total amount paid for the tarp work was $709.28. On August 13, 2006, after he received payment for the tarp work, Respondent produced a building permit application, which he had Mrs. Ogokwe sign in blank. Respondent explained that he had not finished his proposal for the complete re- roofing and that he wanted her to execute a blank permit to expedite the permitting process. On August 14, 2006, Respondent presented a signed permit application to the building department of Miami-Dade County, Florida, pertaining to the re-roofing of the subject property. Ms. Ugowke’s signature had been notarized. When Respondent presented the permit application to the building department, the contractor’s name was listed as F L Construction, Inc. The qualifying contractor’s name was listed as being Charles Lennox with the contracting licensing number CGC 1510133. That was the same number listed on Respondent’s business card. The value of the work was listed as being $6,200.00. On the morning of August 15, 2006, Respondent returned to the subject property with a person Respondent told the homeowners was an electrician. Mrs. Ugokwe asked Respondent how much the repair of the electrical connection would cost before the purported electrician started to work. Respondent told her not to worry since he would add the cost of the electrical work to the cost of re-roofing the subject property. The electrical repair had been made by the time Mrs. Ugokwe returned to the subject property after work that evening. On August 16, 2006, Respondent informed the homeowners that he had secured a building permit and that he had his proposal for the re-roofing. On August 17, 2006, Respondent delivered a package to the homeowners that contained his proposal and the building permit. Respondent’s proposal for the re-roofing was in the total amount of $39,672.92. The homeowners considered this proposal to be unacceptable. On the building permit Respondent gave to the homeowners, the name of the contractor (F L Construction, Inc.) had been covered with white-out and the name South Florida Construction Group had been inserted as the name of the contractor. The building permit was not otherwise altered. On August 19, 2006, Respondent presented the homeowners with a revised contract for the total price of $33,000.00. Mrs. Ugowke confronted Respondent about the discrepancy between the revised proposal ($33,000.00) and the value of the work reflected on the building permit ($6,200.00). Mrs. Ugowke also confronted Respondent about the white-out on the building permit. The homeowners refused to sign the second proposal. Respondent became angry and demanded immediate payment of $750.00 for the repair of the drain field electrical connection. Mrs. Ugokwe counter-offered to pay $150.00, a sum she believed to be fair after her husband priced the cost of the materials used in the repair. Respondent refused to take the counter-offer. By invoices dated August 22 and September 4, 2006, Respondent billed the homeowners for work that included the electrical work. Each invoice was on South Florida Construction Group’s form invoice. Each invoice reflected the general contractor’s license number CGC 1510133, which is Mr. Lennox’s number. Both invoices included a charge of $1,209.28 for installation of “new blue top, nails and labor” although the homeowners had already paid Respondent $709.28 for the same job. The homeowners refused to pay the invoices. Respondent sued them and placed a lien on the subject property in the amount of $3,839.82. In his claim of lien, Respondent affirmed under oath that he furnished the following services to the homeowners: re-roofing, electrical, and repairs. Respondent’s civil suit was dismissed on the merits. Even after that action, Respondent refused the homeowners’ request to remove the lien from their property. On September 15, 2006, Mr. Lennox sent all his sub- contractors a letter asking them to immediately stop using his contractor license number without his express permission. Respondent signed the bottom of the letter acknowledging receipt thereof, even though Respondent was not a sub-contractor. Respondent’s business primarily consists of finding customers for contractors. He deals with a customer, but has a contractor, such as Mr. Lennox, perform the work Respondent’s company has contracted to do. Had the contract with the homeowners in this proceeding gone through, Respondent intended to obtain payment from them, by having F L Construction, Inc., do the actual work. Petitioner has incurred investigative costs in the amount of $277.52. This figure excludes any costs associated with attorney’s time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order that finds Respondent guilty of having violated Section 489.531(1), Florida Statutes (2006). It is further RECOMMENDED that Respondent impose an administrative fine against Respondent in the amount of $1,000.00 and assess investigative costs against Respondent in the amount of $277.52. DONE AND ENTERED this 4th day of April, 2008, 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 4th day of April, 2008.
The Issue Whether Respondent, Department of Business and Professional Regulation, Electrical Contractors Licensing Board, appropriately denied Petitioner's, Kevin Harrington, application to take the examination for licensure as an electrical contractor.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is the state agency vested with the authority to test applicants seeking certification as electrical contractors. Petitioner is seeking certification (licensure) as an electrical contractor. On December 12, 2001, Respondent received Petitioner's application to take the Electrical Contractors Unlimited examination. On December 24, 2001, Respondent mailed Petitioner a letter requesting additional information. The letter requested that the additional information be received by Respondent no later than January 4, 2002. This date was later extended to January 8, 2002. On January 4 and January 7, 2002, Petitioner, through his attorney, forwarded the requested additional information to Respondent. Petitioner's application was complete on January 10, 2002. Respondent, Electrical Contractors Licensing Board("Board"), met on January 16 and 17, 2002. The Board delegates initial consideration of applications to take certification examinations to an Applications Committee consisting of members of the Board who make recommendations to the full Board on each application. Each application is examined by at least two Applications Committee members; if both recommend "denial of the application," or, if one recommends "approval of the application" and one recommends "denial of the application," the application is reviewed by a third Applications Committee member. Each member of the Applications Committee is provided a worksheet as a part of the application package which lists reasons for denial drawn from Subsection 489.511(2)(a)(3), Florida Statutes. After each application is considered by members of the Applications Committee, the application with the Applications Committee's recommendations, reasons for denial (if applicable), and other comments are given to a staff employee who prepares an approved/denial list which is presented to the full Board for consideration. The foregoing procedure was followed in the instant case. On January 16, 2002, Board members, Roger Lange and Kim DeBerry, who were members of the Applications Committee, considered Petitioner's application; both recommended denial of the application. Because there were two recommendations of denial, the application was considered by a third Applications Committee member, Dawn Johnson; she, too, recommended denial. Petitioner's application and the recommendations, reasons for denial, and comments of the Applications Committee were then given to a staff employee who prepared a summary list of all applicants with the recommendations for approval or denial by the Applications Committee with reasons given for denial for submission to the full Board. The full Electrical Contractors Licensing Board considered Petitioner's application on January 17, 2002, and unanimously denied the application. Petitioner was advised of the denial by letter dated February 8, 2002. Petitioner's Applicant's Affidavit dated November 16, 2001, indicates that he was seeking a license under Subsection 489 .511(2)(a)(3)(a), Florida Statutes. The Applicant's Affidavit specifically states: 489.511(2)(a)(3)(a), F.S. Has, within the six (6) years immediately preceding the filing of the application, at least three (3) years proven "management experience" in the trade or education equivalent thereto, or a combination thereof, but not more than one- half of such experience may be educational. (Please submit at least three (3) years of W- 2 Forms) The occupational skills and responsibilities of an electrical contractor are unique and require experience and understanding which are typically acquired by extensive, direct "on-the-job" training in the electrical contracting trade. Petitioner is an experienced General Contractor's project manager. His credentials as a General Contractor's project manager are impressive and the projects he has supervised are extensive. Petitioner has little or no direct supervisory experience in the electrical contracting trade. Petitioner's construction management experience is as a General Contractor project manager, not an Electrical Contractor project manager or similar position, and, as a consequence, he does not meet the "'management experience' in the trade" statutory requirement. Petitioner has an enviable academic record: an Associate of Science Degree With Honors from Miami-Dade Community College (1990), a Bachelor of Science in Building Construction from University of Florida (1993), 21 hours of graduate studies at Florida International University leading towards a Master of Building Construction degree. Petitioner's academic credentials have little direct application to the electrical contracting trade and, as a consequence, do not meet the "educational equivalent" to management experience statutory requirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application to take the Certified Electrical Contractor's Licensure Examination. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 10th day of January, 2003. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Rosemary Hanna Hayes, Esquire Hayes & Associates 3117 Edgewater Drive Orlando, Florida 32804 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the City of Tampa (Respondent) unlawfully discriminated against Royce A. Pauley (Petitioner), based upon race, by failing to promote him to the position of "electrical inspector I" in November, 1987.
Findings Of Fact Petitioner, a white male, began employment with Respondent as a "maintenance repairer II" on March 3, 1987. Respondent is an employer within the terms of the Florida Human Rights Act of 1977, as amended, found at Sections 760.01 through 760.10, Florida Statutes. In filling positions within its various departments, Respondent follows a uniform system which is initiated by completion of Form 263, entitled "Request for Position Change", by the department that has a position vacancy. The department identifies the positon it has available, as well as its requirements, and then forwards Form 263 to the Budget Office for authorization. Finally, it is forwarded to the Personnel Division for its approval, and for the preparation of a list of eligible employees from persons who have an application on file. The Personnel Division sends Form 263 back to the requesting department for that department to conduct interviews and to make the hiring decision. Part III of Form 263 contains a place for the EEO Office to note "underutilization" derived from a statistical comparision, based upon race and sex, of individuals in positions with the Respondent's "expectations" for a particular job classification. The underutilization notation "1 B/M" means that the EEO Office has determined that there is an underutilization of one black male for the vacancy being advertised. On or about September 11, 1989, the Respondent advertised a "current opening" for the position of "electrical inspector I" (Position 2601), in response to which the Petitioner timely filed an employment application. Other applicants for this position included Alfred Trujillo, a hispanic male, John Michael, a white male, and Wayne Shabazz, a black male. The Form 263 for this position was approved by the Personnel Division and returned with a list of eligibles, including Petitioner, Trujillo, Michael and Shabazz, and with the notation, "EEO Underutilization, 1 B/M". Trujillo was selected for this position and was offered employment with Respondent. He initially accepted, and passed his physical examination. However, before beginning his employment, Trujillo decided to decline this position. Thereafter, Michael was offered the position, but he also declined due to a schedule conflict with a course he was teaching in St. Petersburg at the time. After further considering the remaining applicants, Shabazz was selected for, and accepted, this position. On or about April 5, 1988, Petitioner filed a complaint of discrimination with the Florida Commission on Human Relations against Respondent alleging that he had not been selected for promotion to the position of "electrical inspector I" due to his race. Petitioner is white, and he contends that Shabazz, who is black, was selected for this position because of his race due to the Respondent's designation of this position as "EEO Underutilization, 1 B/M". Petitioner's position is that this underutilization notation indicates that the Respondent had predetermined that it would only hire a black male for this position. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, on or about December 28, 1988. However, a supplemental investigation was conducted by an investigative specialist with the Commission who determined, on or about May 11, 1989, that Respondent's stated position with regard to Shabazz's selection was pretextual and racially motivated. Petitioner has filed a Petition for Relief alleging discrimination by the Respondent in employment practices based on race, and this matter was referred to the Division of Administrative Hearings by the Commission for formal hearing. While Trujillo, Michael and Shabazz were interviewed by Nick D'Andrea, Manager of Inspectional Services, and Chris E. "Gene" Scaglione, Chief Electrical Inspector, for this position of "electrical inspector I", Petitioner was not. This was due solely to the fact that Petitioner had been interviewed by D'Andrea and Scaglione within the prior six months when Petitioner applied for the position of Chief Electrical Inspector, for which he was not selected. During this previous interview, Petitioner had been asked specific questions about his knowledge of the electrical code book (Book 70, National Fire Protection Association Manual). Petitioner did not demonstrate to D'Andrea or Scaglione a sufficient knowledge of the electrical code, and lacked the ability to fully and correctly answer questions about the code which were posed to him by Scaglione, who has approximately 37 years of electrical experience. Scaglione determined from a review of previous employment which Petitioner showed on his application for this position, as well as his answers to questions in his interview for the Chief Electrical Inspector position, that Petitioner did not have a minimum of ten years experience in electrical contracting required for all electrical inspector positions by Section 553.22(3), Florida Statutes. No affirmative contacts were made by Respondent's representatives to Petitioner's previous employers to verify his prior electrical experience prior to their decision to offer the "electrical inspector I" position to Trujillo, Michael and Shabazz, rather than Petitioner. However, no efforts were made to verify any of these other applicants' prior experience either. Scaglione and D'Andrea took the prior experience listed by all applicants on their applications at face value, and made no attempts to contact previous employers. Petitioner was treated no differently than other applicants in this regard. Specifically, Petitioner was not credited for his prior experience with the Navy Seabees, Compton Electric of Huntington, West Virginia, Harris-McBurney Telephone Contractors, and as qualifier for All-Pro Electric of St. Petersburg. Scaglione's decision to exclude this prior experience was based upon Petitioner's answers to questioning about this experience in his interview for the Chief Electrical Inspector position, and also upon Scaglione's knowledge of the telephone industry, which is considered to be separate and distinct from electrical contracting. His decision to exclude Petitioner's experience with All-Pro was based on the fact that Petitioner admitted All-Pro did not do much work, and also because he was working full time with the Respondent at the same time he listed All-Pro as an employer. Without credit for these prior jobs, Petitioner had only approximately 80-90 months prior electrical experience, rather than the required 10 years, or 120 months. Shabazz's answers to questions posed to him about the electrical code during his interview exhibited a working knowledge of the code, and an ability to communicate his knowledge. Previous employment shown by Shabazz on his application totaled more than ten years of electrical contracting experience, and based upon his answers to questions in his interview, as well as his previous experience, Shabazz was chosen over Petitioner after Trujillo and Michael declined the position. At the time Shabazz was selected for this position, neither Scaglione nor D'Andrea understood what the terms "underutilization" or "1 B/M" on Form 263 meant. In addition, the evidence is uncontroverted that such notations are advisory only, and there was no effort by anyone in the Personnel Division, or elsewhere in the employ of the Respondent, to counsel or instruct Scaglione or D'Andrea to hire a black male for this position of "electrical inspector I". In fact, they initially offered the position to Trujillo, a hispanic male, and when he declined, they offered the position to a white male, Michael. It was only after these two individuals declined this position that they offered it to Shabazz, a black male. Their decision was based solely upon Shabazz's superior knowledge of the electrical code, as demonstrated in his interview, when compared with the knowledge Petitioner demonstrated in his previous interview within the past six months, and Shabazz's ten years of electrical experience as shown on the face of his application as compared with Petitioner's failure, on the face of his application, to meet the ten year experience requirement. Neither Shabazz nor Petitioner were certified as electrical contractors in Hillsborough County, where the City of Tampa is located, but possession of such certification was not a prerequisite for this position, as long as the person hired obtained certification within a prescribed period of time after being hired. Thus, race was not the reason Shabazz was selected for this position over Petitioner. The Petitioner stipulated at hearing that he is no longer pursuing his charge of retaliation, and no evidence in support of said claim was offered. In April, 1988, Petitioner applied for the position of "electrical inspector II" with the Respondent. As part of the selection process for this position, D'Andrea did telephone some of Petitioner's listed references, as he also did with the successful applicant, Fred Martin, a black male. This was a change in the procedure used to evaluate an applicant's prior experience from the process used when Petitioner applied for the position at issue in this case.
Recommendation Based upon the foregoing, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 31st day of January, 1990, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990. COPIES FURNISHED: Gardner W. Beckett, Jr., Esquire 123 Eighth Stret North St. Petersburg, FL 33701 Thomas M. Gonzalez, Esquire James M. Craig, Esquire P. O. Box 639 Tampa, FL 33601 Margaret A. Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 APPENDIX (DOAH CASE NO. 89-4387) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. 4-5. Adopted in Findings of Fact 2, 7, 9, and 11, but otherwise Rejected as immaterial. 6. Rejected as irrelevant and immaterial. 7-8. Adopted in Findings of Fact 3, 4, 6 and 11, but otherwise Rejected as immaterial. 9-10. Rejected as simply a restatement or summary of evidence and not a proposed finding of fact. Adopted in Finding of Fact 4, but otherwise Rejected as simply a summation of testimony and evidence. Rejected as irrelevant based upon Finding of Fact 12, and otherwise as immaterial and unnecessary. Rejected in Findings of Fact 8, 10 and 11, and also as speculative and as simply a statement from the evidence rather than a proposed finding of fact. Adopted in part in Finding of Fact 8, but otherwise Rejected as immaterial and irrelevant. Rejected as a partial excerpt from the record and not a proposed finding of fact. Adopted in Findings of Fact 2, 11, but otherwise Rejected as simply a summation of testimony and evidence in the record. Rejected as simply an excerpt of testimony and not a proposed finding of fact. Adopted in Finding of Fact 13, but otherwise Rejected as immaterial and unnecessary. Rejected as immaterial and irrelevant to the issue in this case regarding alleged discrimination in hiring to fill position number 2601, and as incompetent to prove any alleged pattern of discriminatory hiring practices. Adopted in Findings of Fact 2, 11. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. 3-4. Rejected as unnecessary. 5-6. Adopted in Finding of Fact 2. 7. Adopted in Finding of Fact 1. 8-10. Adopted in Findings of Fact 6, 7. 11. Adopted in Finding of Fact 8. 12-16. Adopted in Findings of Fact 7, 9. Rejected as unnecessary Adopted in part in Finding of Fact 9. 19-20. Adopted in Finding of Fact 6. 21-22. Adopted in Finding of Fact 3. 23. Adopted in Findings of Fact 6, 8. 24-26. Adopted in Finding of Fact 4. 27-33. Adopted in Findings of Fact 10, 11. 34-35. Adopted in Finding of Fact 13.
Findings Of Fact Petitioner Luther E. Council, Jr., who is now 32 years old, is no stranger to the business of contracting. His father, Luther E. Council, Sr., began instructing him in the trade when Petitioner was approximately 10 years old. Mr. Council, Sr. operates Council Brothers, Incorporated, a commercial plumbing, heating and air conditioning contracting firm. From July 1969 until July 1973 Petitioner was employed as a plumber by Prescott Plumbing Company in Tallahassee, Florida. His duties included assembling and repairing pipes and fixtures for heating, wastewater, and drainage systems according to specifications and plumbing codes. In September 1973 Petitioner entered the United States Navy where he served as an aviation electrician. He attended numerous training schools including electrical, electronics, and avionics schools at the Naval Air Station in Memphis, Tennessee, and at the Naval Air Station at Cecil Field, Jacksonville, Florida. This instruction included over 1,500 hours of classroom time. After two years of service he was honorably discharged. Upon his discharge from the Navy in 1975, Petitioner went to work for Litton Industries at their Ingalls Shipyard in Pascagoula, Mississippi. He began in the position of Maintenance Electrician B but was promoted to Journeyman in less than six months. After approximately one and a half years at Ingalls Petitioner was hired at Brown & Root Construction Company as a Journeyman Electrician on their electrical termination crew. In that position he was responsible for the termination of all electrical equipment in the steam power plant for Mississippi Power Company. He remained in that position until the plant was shut down. Petitioner then returned to Ingalls where he was a Maintenance Electrician on the automated equipment crew. He maintained and repaired equipment such as boilers, welding machines, x-ray machines, air compressors, bridge cranes, communications equipment, sheet metal shop equipment, and fire and security alarm systems. This period of employment was from July 8, 1976 until February 2, 1977. Thereafter Petitioner was again employed by Brown & Root Construction Company, this time in Axis, Alabama. In his position as Work Leaderman Electrician (assistant foreman) he was responsible for the construction, installation, and termination of all electrical equipment for a particular utilities area at the Shell Chemical Plant. He worked on equipment such as boilers, air compressors, water treatment facilities, pump motors, hot oil furnaces instruments, monitoring and control panels, and incinerators with a crew of up to 18 men. Petitioner did not have a foreman but was directly responsible to the project superintendent. From June 1978 until June 1979 Petitioner was employed as an electrician by Union Carbide in Theodore, Alabama. As the only electrician on duty at night, Mr. Council was responsible for the electrical maintenance of all machinery ranging from the power plant distribution system to overhead bridge cranes to small electronic devices. Included within his responsibilities were maintaining air conditioning systems, interior and exterior lighting systems, and repairing huge sandblasting equipment. Upon completion of his work for Union Carbide he returned home to Council Brothers, Inc. Since his return to Council Brothers in June of 1979 Petitioner has had a variety of responsible duties. His functions can be placed in two categories: roving foreman and estimator. Council Brothers is a mechanical contractor with a gross profit of over 1.1 million dollars for the year 1983. Some of the firm's recent projects include installing heating, ventilation and air conditioning (HVAC) equipment at several local high schools; pressurizing the stairwells and elevator shafts in the State Capitol building, modification of HVAC systems at several state office buildings in Tallahassee, Florida, and renovation work at the State Hospital in Chattahoochee, Florida. As an estimator Petitioner supervises the project design and is responsible for the firm's mechanical contracting projects. On most of its projects Council Brothers is the general contractor for the mechanical work. It then subcontracts out the specific electrical work required. In his capacity as a roving foreman Respondent serves as a trouble shooter available to assist those projects which may encounter particular problems. He is then responsible for solving the problems through a redesign of the project, the use of alternative equipment, or some other means. Since August of 1981 however, Mr. Council has spent most of his time in the office estimating and bidding jobs. On August 4, 1983 Petitioner became Vice-President of Council Brothers, Inc. The firm first registered as an electrical contractor in June 1983. Petitioner holds licenses as a certified building contractor, plumbing contractor, mechanical contractor and underground utilities contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Electrical Contractors Licensing Board enter a Final Order denying Petitioner permission to take the examination for licensure as a certified electrical contractor. DONE and RECOMMENDED this 14th February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 14th day of February, 1984.
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence, I make the following findings of fact. Edward M. Wharton (hereinafter "Wharton" or "Petitioner") has applied to the Electrical Contractors' Licensing Board (hereinafter "the Board") for the licensure examination as a certified electrical contractor. Following review of Wharton's application, the Board advised him that it intended to deny his application on the basis of his failure to show sufficient experience. During the middle 1960's, Wharton held a Master's electrician's license in Philadelphia, Pennsylvania. For a two-year period during the 1960's, Wharton ran a sole proprietorship named Wharton Electrical Service. Wharton was in charge of all phases of the operations of Wharton Electrical Service, including the supervision of electrical construction activities. He pulled the electrical permits for Wharton Electrical Service's jobs. The work done by Wharton Electrical Service consisted of some newly constructed residences and new electrical construction installed in renovated residential and commercial buildings. The commercial work included schools, stores, and factories. Approximately 90 percent of the work done by Wharton Electrical Service was commercial work. None of the work done by Wharton Electrical Service was 3- phase because 3-phase was not supplied by the power companies in that area. After approximately two years of operating Wharton Electrical Service, Wharton left that business in order to accept a position with Raymond Rose Company. From then until February of 1980 (when he started Hi-Rise Safety Systems, Inc.), Wharton worked for a number of years in positions that did not involve any form of electrical contracting. During part of this time he was involved in the installation of low-voltage alarm and signaling systems. 1/ In February of 1980, Wharton started a new business known as Hi-Rise Safety Systems, Inc., which be continues to operate. Hi-Rise Safety Systems, Inc., is primarily involved in the business of installing alarm systems. The substantial majority of the alarm systems it installs are low-voltage systems. It has also done some electrical contracting work, some of which has been commercial and 3-phase service. 2/ Hi-Rise Safety Systems, Inc., has been able to do electrical contracting work by employing the services of a local master electrician, Hubert C. Meadors, who was the qualifying agent for electrical permits for the corporation and was responsible for assuring compliance with electrical codes. Even though Meadors was the qualifying agent, Wharton, as president of the corporation and principal employee, did a large part of the supervision of the electrical construction work performed by Hi-Rise Safety Systems, Inc. Specialty contracting, such as the installation of alarm systems, is not, and has not been, considered by the Board to constitute "electrical contracting." The Board's consistent interpretation of the term "electrical contracting" has been to include within the meaning of that term only work which involves the installation of high-voltage systems. This is a reasonable interpretation of the term in view of the vast differences between the potential hazards associated with low-voltage systems and high-voltage systems. 3/ A misinstalled low-voltage system poses no significant risk of fire or electrical shock. A misinstalled high-voltage system poses a substantial risk of fire or electrical shock. It has been a consistent policy of the Board to require that the qualifying electrical contract' no experience include a substantial proportion of work that is commercial and 3-phase service. This is a reasonable policy in view of the fact that commercial and 3-phase service work is more complex than residential work and requires a knowledge of and application of many parts of the National Electrical Code that are not involved in residential work. Wharton and Hi-Rise Safety Systems, Inc., are financially responsible and enjoy a good credit and business reputation. The Hanover Bank of Florida has granted a $10,000 unsecured line of credit to Hi-Rise Safety Systems, Inc., for 1984. Neither Wharton nor Hi-Rise have ever had any liens filed, have never had to settle any bonds, have never been involved in any lawsuits, and have never bad any disputes over hills.
Recommendation For the reasons discussed above, it is recommended that the Electrical Contractors' Licensing Board issue a Final Order denying the application of Edward M. Wharton for admittance to the certified electrical contractor's licensure examination. DONE and ORDERED this 11th day of September 1984, at Tallahassee, Florida. MICHAEL M. PARRISH 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 11th day of September 1984.
