Conclusions . This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Linzie F. Bogan, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal of Intent to Establish Dealership, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Power Group International, LLC, and Reliable Power Equipment, LLC d/b/a Coastal Carts to sell low-speed vehicles manufactured by Tomberlin Automotive Group, (TOMB) at 16277 South Tamiami Trail, Suite A, Fort Myers, Florida 33908. Filed September 6, 2012 2:11 PM Division of Administrative Hearings “ DONE AND ORDERED this C day of September, 2012, in Tallahassee, Leon County, Florida. —m P00 J ulie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services this G day of September, 2012. Webi: Viranok AO Mad — Nalini Vinayak, Deater Hicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/wev Copies furnished: Elinore Hollingsworth Power Group International, LLC 3123 Washington Road Augusta, Georgia 30907 Jay Stewart A Plus Carts and Parts 16100 San Carlos Boulevard Fort Myers, Florida 33908 Donald B. Imbus Reliable Power Equipment, LLC 16277 South Tamiami Trail, Suite A Fort Myers, Florida 33908 Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
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
Findings Of Fact The Respondent, Florida Department of Health and Rehabilitative Services, is an agency of the State of Florida charged with the responsibility, inter alia, for setting and enforcing health and safety standards for hospitals located within the state. In furtherance of this function, the Department has adopted rules set out Chapter 10D-28, Florida Administrative Code. Among these rules are provisions which set standards for hospital construction which are designed to assure the fire and electrical safety of patients, staff and visitors to hospitals. The Department enforces its rules by licensing or certifying hospitals which comply with them, and by refusing licensure or certification to those which do not. The Department's Rule 10D-28.79, Florida Administrative Code, relates to codes and standards for the physical plant of new and existing hospitals. The rule does not set out code provisions, but rather adopts various construction and life safety codes by reference. Rule 10D-28.79(5) provides in pertinent part: The following codes and regulations are herein adopted by the licensing agency [the Department], and it shall be the responsibility of the sponsor [licensed hospitals] to consult such codes for compliance with all matters not specifically set forth in this chapter. Standard Building Code, 1976 edition, Group I, Institutional Occupancy. National Fire Protection Association No. 101, Life Safety Code 1973 Edition; Appendix B of this Code adopts several other NFPA standards, which shall be met . . . This rule became effective on January 1, 1977. Copies of the codes that were adopted by reference did not accompany the rules as the were filed with the Office of the Secretary of State. The Life Safety Code is a publication of the National Fire Protection Association (NFPA). Appendix B to the Code, which is referenced in the Department's Rule 10D-28.79(5)(b) is titled "Referenced Publications" and provides in part as 7 follows: The following publications are referenced by this Life Safety Code and thereby comprise a part of the requirements or recommendations to the extent called for by the Code or Appendix A, respectively. The Appendix goes on to list more than fifty publications, including the 1971 National Electric Code, which is another publication of the National Fire Protection Association. The crux of this proceeding is a single paragraph of this publication. Paragraph 517-51(a) sets an electrical performance standard to be met in hospital areas where "electrically susceptible patients" are housed. The paragraph provides: In electrically susceptible patient areas the maximum 60-hertz alternating-current potential difference between any two conducting surfaces within thee reach of a patient, or those persons touching the patient, shall not exceed five millivolts measured across 500 ohms under normal operating conditions or in case of any probable failure. The Department has interpreted its Rule 10D-28.79(5)(b) as adopting as performance standards the provisions of all of the codes set out in Appendix B of the 1973 Life Safety Code, including the 1971 National Electric Code, and paragraph 517-51 thereof. There are conflicting provisions in the various Life Safety and Electrical Codes that the Department has adopted, and contends that it has adopted through its adoption of Appendix B of the 1973 Life Safety Code. The Department resolves these conflicts by requiring hospitals to develop solutions which will meet the provisions of all of the codes. The provisions of paragraph 517-51(a) of the 1971 National Electric Code are considerably more strict than similar provisions set out in later editions of the National Electric Code, including the 1975, 1978 and 1981 Codes. The Department contends that hospitals must comport with the most strict of these requirements, i.e. the ones set out in paragraph 517-51(a) of the 1971 Code. The Petitioner Memorial Hospital of Jacksonville is an accredited, licensed hospital in the State of Florida. Memorial Hospital is presently in the process of constructing a three million dollar renovation, including a renovation to its critical care unit. In order to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code, Memorial Hospital would need to expend approximately $55,000 that would not need to be expended in order to comply with provisions of other codes. Memorial Hospital has requested a variance from the Department from the requirement of complying with this provision. The Petitioner St. Vincent's Medical Center is an accredited, licensed hospital located in Jacksonville, Florida. St. Vincent's Medical Center is currently involved in a project to renovate and add space to its existing facilities, including a thirty-two bed critical care unit. In order to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code, St. Vincent's would be forced to expend from $75,000 to $80,000 which would not be necessary in order to comply with the provisions of other codes. St. Vincent's Medical Center has requested a variance from the requirements of that provision from the Department. Halifax Hospital Medical Center is an accredited, licensed hospital located in Daytona Beach, Florida. Halifax Hospital has been advised that it would be required to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code in renovating and expanding its critical care unit. While the precise cost of complying with the provision cannot be determined, it is evident that Halifax Hospital would be required to expend more money to comply with the provision than would be required to comply with other provisions. The Petitioner Shands Teaching Hospital and Clinics, Inc., is an accredited, licensed hospital located in Gainesville, Florida. Shands Hospital is presently in the process of expanding and renovating its facility, including its critical care unit. Shands Hospital has been advised by the Department that it would need to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code in connection with the critical care unit. The cost of complying with this provision would be approximately $140,000 over the cost of complying with other provisions. No evidence was presented with respect to the Petitioner Variety Children's Hospital. The Department's interpretation of its Rule 10D-28.79 as having adopted by reference the performance standard set out at paragraph 517-51(a) of the 1971 National Electric Code is in error. While the Department's rule references Appendix B to the 1973 Life Safety Code, it provides only that that Appendix adopts several other standards which must be met. While the Appendix references the 1971 National Electric Code, it adopts only the provisions of the 1971 National Electric Code and the other referenced publications to the extent that they are otherwise adopted in the 1973 Code or Appendix A thereto. Paragraph 517-51(a) of the 1971 Code is not referenced in Appendix A to the 1973 Life Safety Code, nor in any other pertinent place. The Department has, albeit erroneously, interpreted its rules as adopting paragraph 517-51(a) of the 1971 National Electric Code. This interpretation is being uniformly applied by the Department, and therefore itself constitutes a rule. The interpretation has not itself been adopted as a rule other than through the provisions of Rule 10D-28.79. The 1971 National Electric Code was not filed with the Office of the Secretary of State when Rule 10D-28.79 was filed, and is not generally available. It has been replaced by subsequent editions of the National Electric Code and is no longer generally available to members of the public at large. The effect of the Department's interpretation of its rules as adopting the standard set out in paragraph 517-51(a) is to require hospitals to install "isolated power sources" in critical care units. The standard by its terms applies to areas of a hospital where electrically susceptible patients are housed. Such patients are housed in operating rooms, rooms where highly flammable anesthetics are used, and in critical care units. Other standards adopted by the Department expressly require installation of isolated power sources in operating rooms and in rooms where flammable anesthetics are used. The fact that these are "wet" areas and areas where flammable materials are kept justifies those requirements. These conditions do not apply to critical care units. The electrically susceptible patients who are housed in critical care units are patients who have catheters inserted into their bodies, and extensions from the catheters protruding outside their bodies. The most common such patient is a patient with a pacemaker attached to his or her heart. With such patients an electrical device outside the body is connected through a catheter into a vein, and eventually to an area close to or actually at the heart. These patients are electrically susceptible because low levels of electrical current that might flow through the catheter could kill the patient. A power source of less than 100 millivolts if attached to the catheter in such a way that current could flow through the catheter could have the effect of fibrillating a patient's heart and killing him. This is much less power than would do any damage to a person under normal conditions, and considerably less voltage than would commonly result from short circuits or other malfunctions in equipment powered by conventionally grounded power sources. The amount of voltage that would be available given a fault or short circuit condition can be reduced through use of isolated power systems. Such a system includes a transformer which provides a demarcation between the incoming or primary power line, which is conventionally grounded, and the outgoing or secondary line. The secondary line is isolated from ground, neither wire being connected to ground. The secondary line runs into circuit breakers then to receptacles about the room. All of this equipment is installed in an electrical box. A monitor or gauge is installed on the face of the box. The monitor visually displays the extent of degradation of the secondary line, i.e. , whether the secondary line has become grounded. By observing the monitor, it is possible to avoid grounding a patient so that electrical currents cannot pass through the patient. The Department maintains that the 1971 Code standard can be met only through installation of isolated power sources. Under some fault circumstances this is correct, and, no other practical technology exists to meet the standard under any fault circumstances. Imposition of the standard set out at paragraph 517-51(a) of the 1971 National Electric Code is arbitrary and unreasonable. In the first place, no known technology can meet the standard. Even an isolated power system will meet the standard only in the case of line-to-ground faults. In cases where ground is lost, the isolated power system will not stay within the standard. The Department's action in requiring hospitals to install line isolation monitors thus meets the standard only under one fault circumstance, and it is not the one that most commonly occurs. Even as to those faults for which the line isolation monitor will accomplish the meeting of the 1971 standard, there is no valid reason for requiring their installation. The goal of protecting an electrically susceptible patient from electrocution can be easily and reliably accomplished by protecting the catheter from contact with electrical power sources. Basically, in order to create an electrical incident, or a shock, one part of a person's body has to touch some metal, another part has to touch some metal, and some current has to flow. This can be broken down into eight steps that would need to occur for a patient to be shocked: First, a power source or power line has to run close to the patient. Second, the line has to be exposed and touch metal. Third, the metal has to become live. Fourth, the metal must become ungrounded. Fifth, the patient has to touch the metal directly or through some conductive path. Sixth, a second conductive surface (more metal) has to be available. Seventh, the patient has to touch it. Eighth, the current has to be at a level that will cause harm. If any of these things does not happen, there will not be a shock. During the 1960's and early 1970's, the fact that very low levels of electrical current could cause fibrillation of the heart was not understood. This fact has been understood now for some time, and hospitals have looked to avoid placing patients in circumstances where the eight steps can occur. Looking at the problem in this manner allows hospitals to focus on what factors can easily be eliminated. Current practice is not to ground things which do not have to be grounded. It had previously been the practice to ground all of the metal around the patient, creating a "bathtub" effect. The line isolation monitor serves to eliminate the eighth of these steps by, in at least one fault circumstance, allowing only very low levels of current to flow. The other steps can be more easily eliminated. One means of accomplishing that is to isolate the power source to the catheter. Thus, battery powered equipment is now typically used, rather than equipment that attaches directly to the main power source. Furthermore, catheters protruding from a patient's body are now insulated, and critical care unit personnel are instructed not to touch them unless they are wearing rubber gloves. The taking of these steps eliminates the possibility for electrocution of an electrically susceptible patient through low voltage currents (microshock). There have been no documented deaths of patients through such microshock anywhere in the world since 1972. Even in that instance, which occurred in the United Kingdom, the accident did not happen in a critical care unit, but rather in an operating unit. The circumstances of the incident were that a hospital had been callously negligent in allowing its equipment to be modified so that inadequate switches were attached to an operating table and open current lines were exposed. Blood from a patient flowed to the open lines, and electrocution resulted. This incident bears no relevance to the instant rule. In the first place, it occurred in an operating room, where isolated power systems are properly required. In the second place, the hospital staff was incredibly negligent about its procedures and equipment. In addition to the fact that isolated power systems no longer accomplish any valid purpose in preventing microshock, there are disadvantages to their use. These disadvantages include: (1) Line isolation monitors limit the amount of power that is available at bedside in critical care units. There is a need for considerable available power at bedside, and line isolation monitors limit available power, and can contribute to power interruptions. (2) A component is added to the power distribution system so that an additional point of failure exists. (3) The isolation system is installed at the head of beds in a critical care unit, thus interfering with the possibility of putting other equipment in that place. (4) Isolated power systems with their transformers and monitors can produce an annoying hum. (5) Isolated power systems give off heat. (6) Line isolation monitors which go with isolated power systems can cause interference with other devices, such as electroencephalograms and electrocardiograms. (7) Several models of isolated power systems, including those required under the 1971 National Electric Code, require special electrical receptacles, thus limiting the use of various appliances in a critical care unit. (8) Personnel have to be trained as to the nuances of isolated power systems, and as to the meaning of readings on the monitor. (9) Isolated power systems can give personnel a false security and cause carelessness in preventing the factors which could cause and electrical current to flow through a catheter. Except for electrically susceptible patients as described herein, there is no reason to require installation of isolated power sources in critical care units. Petitioners have contended that other regulations of the Department which relate to the setting of fire protection standards in hospitals constitute invalid exercises of delegated legislative authority. No evidence was presented as to how these standards specifically affect any of the Petitioners. No evidence was presented to establish that any of the Petitioners are in any way injured or adversely affected by the rules.
Findings Of Fact The Petitioner, John Michael Hatcher, is an electrician by training and was employed at times pertinent hereto by the City of Gainesville. His job as an electrician spanned the years 1979 to 1992. He first worked at the Deer Haven Power Plant operated by the City of Gainesville. In 1987, he was transferred to a position as a substation electrician with the City utility entity. His primary duties as a substation electrician involved performing maintenance and repair to high-voltage circuit breakers and other equipment involved in the transmission and distribution of electrical power. Substation electricians perform their work by employing two crews of three members each. On each crew, there were two electricians and one crew leader. The work of substation crews is performed on 90-day schedules. In September of 1992, the Petitioner was suspended from his position for "inability to perform the essential functions of his job" and was ultimately terminated on October 7, 1992. That termination was upheld by the City of Gainesville through its grievance process on November 10, 1992, after exhaustion of the three-step grievance process provided for in the City's collective bargaining agreement. Sometime in 1987, the Petitioner experienced breathing difficulties or respiratory irritation, when in the presence of electric power circuit breaker vapors, related to petroleum products used to cool the circuit breakers. The Respondent installed high-volume ventilation fans at the substation and encouraged the Petitioner to use the fans to remove the noxious vapors from the power circuit breaker area prior to the fume exposure which he states caused his injury. The Respondent also advised the Petitioner to use breathing masks. The ventilation fans proved to be effective in removing the vapors which the Petitioner found irritating in the electric substation environment. The masks were also effective in allowing him to work in that environment without being bothered by the fumes, as he admitted. These steps solved the Petitioner's problem in his main working environment but still left a problem for him when he drove the vehicle he used to get from job site to job site. The Petitioner maintained that he was bothered by exhaust fumes when traveling through downtown traffic in the open van-type vehicle. The Respondent recommended that he wear the breathing mask during this time, as well, and he acknowledged that it was effective in preventing the respiratory irritation that had bothered him when driving or riding in the van. The Petitioner, however, advised that he could not wear the protective mask for very long periods. This was purportedly because the heat and humidity gave him problems wearing the mask for an extended period, although traveling across a town the size of Gainesville did not take a very extended period of time. The protective mask was shown to be effective at his regular work station and in the van. The irritation problem was caused by the Petitioner not timely donning the mask before he became symptomatic. It is not clear exactly when, after mid-1987, the Respondent learned that the Petitioner was purportedly having breathing difficulties in association with his work environment. In any event, during mid-1989, the Respondent, after hearing that the Petitioner had experienced breathing difficulties when in the presence of power circuit breaker vapors, began an independent study of the causes of his complaint. This was in addition to its recommendation that he use the high-volume ventilation fans and the protective masks the Respondent provided. The Respondent's risk management division hired Lipsey & Associates to conduct a toxicology evaluation of the areas in which the Petitioner worked. The air quality in the Petitioner's work environment, tested by this independent firm, was found to be within appropriate air-quality standards or "OSHA" standards. None of the Petitioner's co-workers suffered the symptoms the Petitioner complains of. The Petitioner did not always wear the breathing mask in the work areas where fumes occur nor does he always wear it when driving the van through downtown Gainesville. Because of the Petitioner's health complaints, he was referred to the Family Practice Medical Group and examined by Dr. Marvin Dewar on June 8, 1992. Previously, the Petitioner was examined by Dr. Pravda on April 23, 1991 and diagnosed with sinusitis and asthma. He was examined by Dr. Stringer, an ear, nose and throat specialist, on August 27, 1991, with no physical abnormalities being found. He was also examined by Dr. Gonzalez-Rothi on October 10, 1991, with no significant pulmonary disease being found. He was then diagnosed with a "sinobronchial syndrome". During this period of time, beginning in 1989, the Petitioner's attendance for his various evaluation periods was rated "conditional" and "below average" (in 1990-1991). In 1992, he received a score of "2" (out of 10) for below-average attendance. His absences in the 1992 evaluation period increased both in number of hours used and number of incidents. The Petitioner attributed his absences during his 1992 evaluation period to a recurring illness caused by his exposure to irritants in the work place. He acknowledged in his testimony, however, that the breathing mask and ventilation fans had helped prevent the problem but that he did not always avail himself of the protective devices on a timely basis to prevent symptoms. Rather, he only wore the masks intermittently after he felt symptomatic with respiratory irritation. Because of his continuing absences, the Respondent finally notified the Petitioner that he was being terminated, due to an inability to perform the essential functions of his job, rather than because of an unwillingness to do so. At the time the Petitioner was notified that his employment would be terminated, he had not ever informed the Respondent, or filed any claim, for an alleged disability. The Respondent was aware that he had a sensitivity to petroleum and automotive fumes, but with the ventilation fans and masks that it had provided, and with the air quality report stemming from the study, the Respondent was of the belief that the Petitioner was able to perform all of the duties of his job as an electrician. It only became convinced that he was unable to perform the essential functions of his job because of the frequency of absences, which failed to improve. An informal conference related to the termination was scheduled for September 17, 1992 and held on September 21, 1992. At this time, the Petitioner had not yet informed the Respondent of any alleged disability, as shown by Mr. Holder's testimony. Although the Petitioner claimed in his testimony that he informed the Respondent of his diagnosis of "chronic fatigue immune system dysfunction" and "idiosyncratic reaction to petroleum vapors" by purportedly giving Mr. Holder, his supervisor, a copy of Dr. Itzkowitz's diagnosis on one of the prescription forms, the credible testimony and evidence is that those diagnoses were not known to the Respondent nor discussed at the September 21, 1992 informal conference. The credible evidence and testimony shows that the Petitioner informed the Respondent that he had found a doctor who had diagnosed his problem and could cure him, but did not mention any handicap or the need for any accommodation at the time of that informal conference. In fact, the Petitioner's testimony in this regard is contradicted in a document he himself wrote, in evidence as Respondent's Exhibit 3. In this self-authored "termination summary," the Petitioner himself states that prior to that September 21, 1992 meeting with management, management personnel did not know he had found a doctor who had diagnosed his condition. The Petitioner attempts to correct this contradiction by testifying that his statement to that effect referred to "upper management" not knowing. This attempted correction is itself contradicted by the Petitioner's statement on direct examination that he believed Mr. Holder would give the prescription form document, supposedly containing his diagnosis, to Mr. Holder's superior, Mr. Williams. Therefore, if, indeed, he had given the diagnosis on the prescription form to Mr. Holder, and if his statement that he believed Mr. Holder would convey it to Mr. Williams and "upper management" is his true belief, how could he then testify that management did not know (unless he really knew he had never informed the Respondent at or before the September 21, 1992 meeting at all)? Indeed, that is found to be the case. The Respondent did not learn of Dr. Itzkowitz's diagnosis until after that conference. In testifying at hearing, the Petitioner presented a "diagnosis" of "chronic fatigue syndrome" and "hypertriglecemia" by presenting a prescription form of Dr. Itzkowitz as Petitioner's Exhibit 2. That form is dated August 24th. The Petitioner stated that he presented it to his supervisor, Mr. Holder, in August or early September of 1992, before his September 14, 1992 suspension. He stated that he believed Mr. Holder would give the document to his superior, Mr. Randy Williams. In contrast, the Respondent presented its Exhibit R-1, which is a copy of the same document on Dr. Itzkowitz's prescription form. This copy is undated. It had been included in a packet of medical information from the Petitioner to the Commission, which contained copies of all the medical information previously submitted to the Respondent by the Petitioner. When asked how the same document could be dated in one version and undated in another, the Petitioner stated that he had received an undated version from Dr. Itzkowitz and had returned it to her for signature, whereupon the date was put on it. Dr. Itzkowitz, in her testimony, however, contradicts this and stated that she "absolutely" dated the document when she originally wrote it. The Petitioner and Dr. Itzkowitz cannot both be right. One of the two is either giving untrue testimony or has a very faulty memory in this regard. In any event, the authenticity of the document containing the purported diagnosis and by which the Petitioner maintains he informed the Respondent of his diagnosis and handicap before his suspension, the September 21, 1992 meeting, and his termination, is called into serious question, as are the motives of the document originators, particularly the Petitioner. It is thus found that the Respondent was not informed of the Petitioner's diagnosis and handicap before the termination and that Mr. Holder's testimony in this regard to the effect that he did not know of any handicap, or the diagnosis upon which the Petitioner relies, before the termination, is accepted as more credible and worthy of belief under these circumstances. The Petitioner's Exhibit 2 is not deemed a credible document. Subsequent to the Petitioner's September 21, 1992 informal conference with the Respondent, Petitioner's physician, Dr. Itzkowitz, sent the Respondent a letter dated September 29, 1992, stating her diagnosis of fibromyalgia and idiosyncratic reaction to petroleum vapors. Dr. Itzkowitz's letter to the Respondent does not state that the Petitioner was able to perform the duties as a substation electrician. The doctor states that he would do well at his previous assignment (power plant electrician). The doctor's September 29, 1992 letter finds "significant, reversible respiratory illness" even though prior medical examinations found no physical abnormalities. The doctor also supplied a "certificate of examining physician", for purposes of the Petitioner's unemployment compensation claim, stating that the Petitioner was unable to work from August 14, 1992 through September 14, 1992. In fact, that was an inaccurate statement because the Petitioner worked all but about four of the days between those two dates. The Petitioner submitted this document to the Department of Labor, Division of Unemployment Compensation, without advising that entity that the information was incorrect and that, indeed, he had been working during most of that period of time. When Dr. Itzkowitz was questioned by the Respondent about the Petitioner's ability to work during that period, following exchange occurred: Do you have any recollection as to whether or not Mr. Hatcher was actually not working during all that period? When Mr. Hatcher came to me, he told me he was not allowed to work. Whether that meant that he was given time off, he was suspended, or what, I have no clue. 2. So, when you say unable to work, you are going from what Mr. Hatcher told you? a. Or what other information was given to me, and again this is only a partial record. I mean I don't have the full record here, and what I do have I can't read. (See Petitioner's Exhibit 1 in evidence) However, according to the information on Respondent's Exhibit 4, the Petitioner became Dr. Itzkowitz's patient on August 14, 1992; and on that same day, the doctor wrote the Petitioner a doctor's excuse to be off work indefinitely. The Petitioner, however, only stayed off work for four days. The Petitioner was asked in this regard: Q. Whose idea was it for you to go back to work, yours or hers? Dr. Itzkowitz being the her. A. Mine, I believe. Q. Did you check with her to see if that was approved? A. Yes. Consequently, when Dr. Itzkowitz filled out the form represented in Respondent's Exhibit 4 in evidence, she must have known that it was not really accurate that the Petitioner was unable to work from August 14, 1992 through September 14, 1992. She authorized the Petitioner to be off work and approved the Petitioner returning to work, if the Petitioner's testimony quoted last above is true, that is. In any event, it has not been credibly demonstrated that the Petitioner had to be off work due to any disability or illness from August 14, 1992 through September 14, 1992. Up to the date of his termination on October 7, 1992, the Petitioner had not actually alleged a disability nor had he requested accommodations for such. He was terminated based upon his inability to perform the essential functions of his job and not because of his handicap. He could not perform the essential functions of his job because he was not there often enough, due to his pattern of frequent absences. He is able to perform the duties of his electrician job without accommodation, aside from the presence of irritating fumes. The problem of the irritating fumes was already alleviated by the voluntary provision of ventilation fans and face masks provided to him by his employer. After his termination on October 7, 1992, the Petitioner appealed to the third level or step of the Respondent's internal grievance procedure and alleged there for the first time that he was handicapped by "chronic fatigue syndrome". He requested accommodations for that alleged disability. The accommodations he requested involved a proposed return to his previous position as a power plant electrician at the Deer Haven Power Plant or the setting up of a rotating assignment, as a full-time position, as well as the allowance of an air-conditioned truck to perform this new position. None of the accommodations requested involved the Petitioner performing the same job and position from which he was terminated. During the period of time the Petitioner was experiencing high absenteeism from 1989 through 1992, purportedly because of his aversion to the fumes, he was encouraged to apply for other positions with the City that would take him away from fumes. The Petitioner stated to the Respondent during his "step 3" grievance conference, after his initial termination, that he considered job openings in the Human Resources Department but had not talked to anyone with that entity or filed an application. Subsequent to his termination, he applied two or three times for a position as a power plant electrician, the position he held before becoming a substation electrician. He falsified his application, where he stated that he had never been discharged or terminated but he was still allowed to take the test for the open position. Instead of testing for the position, however, he called the Respondent before the day of the test and advised the Respondent that he could not take the test due to illness. This is somewhat curious. Since the test was scheduled for the afternoon, it would seem if he wanted to avoid the test due to illness on the day of the test, he would have called on the morning of the test, rather than the day before it was administered to state that he could not take the test due to illness. The Petitioner could have consulted a physician to find out if something could be done to allow him to take the test at a different time and he could have called and requested some accommodation in taking the test, if he believed he was an applicant with a handicap. However, The Petitioner did neither of these things. He simply said he could not take the test due to illness and apparently never sought any alternative time or means of taking the test to become qualified for the position. This calls into question whether the Petitioner genuinely has any interest in returning to work at the power plant. Moreover, in his Petition for Relief, the Petitioner requested that he be reinstated to his former position. Subsequent to his termination, however, he filed a claim for social security benefits. In order to be considered disabled for purposes of social security benefits, a person must be "unable to do any substantial, gainful work due to a medical condition which has lasted or is expected to last for at least 12 months in a row. The condition must be severe enough to keep a person from working not only in his or her usual job but in any other substantial, gainful work." See Respondent's Exhibit 8, in evidence. The Petitioner's testimony at hearing conflicts with his representation of his condition in Respohndent's Exhibit 8. It reveals, in effect, that he did not meet this definition for disability when he unsuccessfully applied for those benefits. He was, and is, not in accord with that definition of disability, is able to work as stated above and seeks reinstatement to his former position with the power plant. The Petitioner stated in his Petition for Relief that his handicap is not hypersensitivity to petroleum vapors but, rather, is a chronic fatigue illness of his immune system, causing immune dysfunction and resulting sensitivity to drugs, allergies, odors, and chemicals. The Petitioner also alleges that the chronic fatigue causes the sensitivity to vapors. At the hearing, he could not point out any single incident of chronic fatigue suffered by him, but which preceded his sensitivity to petroleum vapors, which occurred back in 1987. The medical evidence indicates that prior to his sensitivity to vapors, his health had been good. Fibromyalgia is a chronic condition causing people who suffer from it to have chronic aches most of the time. It is a syndrome, and sufferers often also have associated chronic fatigue. The two terms are synonomous for the same condition. The Petitioner's medical history does not reflect any history of severe or chronic aches. Nothing in his medical records reflects any history of the fatigue syndrome preceding his vapor sensitivity. His allegation that his vapor sensitivity is a symptom of two separate conditions, chronic fatigue and fibromyalgia, is not credible.
Recommendation Based on 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 RECOMMENDED that a Final Order be entered dismissing the Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 31st day of August, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-264 Petitioner's Proposed Findings of Fact 1-4. Accepted. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the findings of fact of the Hearing Officer. Rejected, as irrelevant. Rejected, as immaterial. Accepted, but not materially dispositive. 9-11. Accepted, but not itself materially dispositive. 12. Accepted, in terms of describing Dr. Itzkowitz's testimony but not as to its purported material import. 13-15. Accepted, but not itself materially dispositive. 16. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. 17-19. Accepted, but not materially dispositive. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact are accepted to the extent that they are not inconsistent with the findings of fact made by the Hearing Officer. To the extent that they differ from the Hearing Officer's findings of fact, they are rejected. Certain of the Respondent's proposed findings of fact are omitted as being irrelevant or unnecessary. COPIES FURNISHED: John M. Crotty, Esq. Post Office Drawer 2759 Gainesville, FL 32602 Ronald D. Combs, Esq. Assistant City Attorney II City of Gainesville-Law Department Post Office Box 1110 Gainesville, FL 32602 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
Findings Of Fact The findings of fact set out in paragraph 1 of the Recommended Order are based upon Hearing Officer's exhibit 1 and FPC exhibits 6, 7, and 8. The findings of fact set out in paragraph 2 are based upon a stipulation of the parties which is recorded in the transcript of the formal hearing, Volume III, pp. 181-182. The findings of fact set out in paragraph 3 are based upon the testimony of the witnesses Schaefer and Guillet; and upon Hearing Officer's exhibit 1 and FPC exhibits 1 through 8, and 69. The findings of fact set out in paragraph 4 are based upon the testimony of the witnesses Greene, Schaefer, and Conner; and upon Hearing Officer's exhibit 1, and FPC exhibits 1, 5, 14, 47, and 48. The findings of fact set out in paragraph 5 are based upon the testimony of the witnesses Greene and Conner; and upon Hearing Officer's exhibit 1, and FPC exhibits 1, 5, 47, 48, and 49. The findings of fact set out in paragraph 6 are based upon the testimony of the witnesses Schaefer, Greene, Conner, and Voigts; and upon Hearing Officer's exhibit 1 and FPC exhibits 1, 5, 12, 35 through 45, 59, and 61. The findings of fact set out in paragraph 7 are based upon the testimony of the witness Conner; and upon Hearing Officer's exhibit 1, and FPC exhibits 14,35, and 39 through 43. The findings of fact set out in paragraph 8 are based upon the testimony of the witnesses Schaefer, Greene, Marin, Voigts, Guillet, Harp, Lokey, Gilmartin, and Watson; upon the testimony of public witnesses Wagoner, Velden, and Dykes; and upon Hearing Officer's exhibit 1 and FPC exhibits 1, 5, 14, 16, 22, 27, 28, 32 through 34, 39 through 43, 45, 46, 52, 61, and Public exhibit 1. The findings of fact set out in paragraph 9 are based upon the testimony of the witnesses Schaefer, Greene, Marin, Voigts, Guillet, Harp, Lokey, Gilmartin, and Watson; upon the testimony of public witnesses Wagoner, Velden, and Dykes; and upon Hearing Officer's exhibit 1 and FPC exhibits 1, 5, 14, 16, 22, 27, 28, 32 through 34, 39 through 43, 45, 46, 52, 61, and Public exhibit 1. The findings of fact set out in paragraph 10 are based upon the testimony of the witnesses Marin, Brown, Guillet, Lokey, Gilmartin and Watson; and upon Hearing Officer's exhibit 1 and FPC exhibit 16. The findings of fact set out in paragraph 11 are based upon the testimony of the witnesses Brown, Cartensen, and Miller; and upon FPC exhibits 49, 50, 51, and 65. The findings of fact set out in paragraph 12 are based upon the testimony of the witness Brown. The findings of fact set out in paragraph 13 are based upon the testimony of the witnesses Brown and Harp; and upon FPC exhibit 52. The findings of fact set out in paragraph 14 are based upon the testimony of the witness Conner. The findings of fact set out in paragraph 15 are based upon the testimony of the witness Miller; and upon FPC exhibits 51 and 65. The findings of fact set out in paragraph 16 are based upon the testimony of the witness Schaefer; and upon FPC exhibits 9, 10, 11, and 69. The findings of fact set out in paragraph 17 are based upon the testimony of the witness Koszulinski and Guillet; and upon Hearing Officer's exhibit 1, and FPC exhibits 70 through 73. ENTERED THIS 2nd day of June, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 2nd day of June, 1982.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is a state agency charged with the duty and responsibility of regulating the practice of electrical contracting pursuant to Chapters 20, 455, and 489, Florida Statutes. At no time material hereto has Respondent been certified or licensed as an electrical contractor pursuant to Chapter 489, Part II, Florida Statutes. In September 1997, Respondent contracted with William and Carol Pike of McAlpin, Florida, for the installation of a room addition to the Pike's mobile home. The addition was not new, but had been used by a previous customer. The addition was to be connected to the main part of the house. The installation of the addition was completed in October 1997. The Pikes paid the full contract price of $8,636.00 to Respondent for the installation of the addition. The installation of the room addition required certain electrical work including: the addition had to be wired to the existing mobile home; electrical outlets and lights were wired into the addition; and a new outside light was added at the back door. The Pikes did not have any problems with the wiring of the room addition until April 6, 2001, when a power outage occurred in the area resulting in the Pike's losing electrical power. When the electricity was restored, the Pikes still had no electricity in the room addition. The Pikes contacted the local power company and upon checking, the Pikes were informed that the problem was inside their home. The morning after the power outage, the Pikes called Corbett's Mobile Home Center in an effort to get someone out to their home that day for the needed repairs. Robert Corbett was out of town and they were unable to reach anyone there who could come out to the Pike's home that day which was a Saturday. The Pike's then called Steve Frazier at Santa Fe Electrical Services, to check out the problem. Upon examination, Mr. Frazier found several problems with the electrical wiring under the house including open splices, wires spliced together, hot and ground wires reversed and no junction boxes on the wire junctions. Mr. Frazier recommended that the Pikes contact the original contractor to fix the problem and to leave the breaker off for their safety. The Pikes contacted Respondent and Respondent sent "Billy" to the Pike's residence on Tuesday, April 10, 2001. Billy was unable to correct the problem. The Pikes requested that Respondent send out the original permit with the repairmen. Respondent sent Billy and another person out to attempt to fix the problem but they were unsuccessful in doing so and did not bring any permit. The Pikes were not comfortable with what they perceived to be the level of competency of these employees of Respondent and they asked the men to leave. The Pikes then hired Steve Frazier to correct the wiring problems with the room addition. The electrical work performed by Frazier to correct the wiring problems included: re-wiring and running new wire to outlets; installation of several junction boxes; and repairing open splices in the walls and ceiling. Mr. Frazier obtained the appropriate permit, completed the work of rewiring and obtained a final inspection which was approved. The Pikes paid $855.00 to Santa Fe Electrical Services for this repair work. The Pikes filed a complaint with the Suwannee County Licensing Board. According to Pat Sura, a building inspector with the Suwannee County Building Department, the installation of the room addition is akin to the construction of an addition at a site and requires an electrical license and a permit. This differs from wiring a double-wide mobile home together, as that does not require a permit. The Department incurred investigative costs in the amount of $659.48 in this case.
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 finding that Respondent violated Section 489.531(1), Florida Statutes, that an administrative penalty of $1,000.00 be imposed, and that Respondent pay Petitioner's costs of investigation in the amount of $659.48. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. 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 14th day of December, 2001.
