The Issue Whether Petitioner is entitled to licensure as a certified electrical contractor pursuant to the provisions of Section 489.514, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner, William Davidson Schaefer (Petitioner), was a licensed electrical contractor, having been issued License No. ER-0008163. This license, issued to Petitioner after he fulfilled the competency requirements of the Pinellas County Construction Licensing Board, allows him to practice electrical contracting in Pinellas County, Florida. To meet the competency requirements of the Pinellas County Construction Licensing Board necessary to obtain an electrical contracting license, Petitioner had to successfully complete a written examination. In 1981, when Petitioner received his license, the test required by the Pinellas County Construction Licensing Board was administered by Construction Exams, Inc., the sole test provider for Pinellas County. Petitioner took the Electrical Contractor's Examination administered by Construction Exams, Inc. on June 26, 1981, and earned a passing score of 86.5%. Petitioner has practiced electrical contracting in Pinellas County since 1981 and has been sole owner of Lester Electric, Inc., an electrical contracting company, since 1983. Petitioner's license is active and in good standing. Moreover, during the time that Petitioner has practiced electrical contracting, he has not been the subject of any complaints filed with, or discipline imposed by, the Pinellas County Construction Licensing Board. On or about May 8, 2000, Petitioner applied to the Electrical Contractors' Board (Board) for certification as an electrical contractor pursuant to the "grandfathering" provisions of Section 489.514, Florida Statutes. On or about May 26, 2000, the Board denied Petitioner's application for certification as an electrical contractor because he did not provide information upon which the Board could determine that the examination administered by Construction Exams, Inc. is substantially similar to the state examination. The exam administered by Construction Exams, Inc. contained a technical section and a general business section. However, Petitioner does not recall if the examination included a section or questions on safety. On the Examination Verification Form submitted to the Board as part of Petitioner's application, the Pinellas County Construction Licensing Board verified that the examination taken by Petitioner in 1981 included a technical section and a general business section. However, in response to a question on the form asking if the examination had included "fire alarm questions," the Pinellas County Construction Licensing Board marked the response, "Not sure." The company, Construction Exams, Inc., that administered the examination that Petitioner took in 1981 is no longer in business. Petitioner sought to obtain a copy of the examination from the Pinellas County Construction Licensing Board, but learned that the local board did not have a copy of the examination. Except for the time he was taking the examination, Petitioner never had nor has he been able to obtain a copy of the examination from any source. Although Petitioner does not recall if the examination that he took in 1981 included questions on safety and/or fire alarms, he was able to obtain information about some of the areas covered on the examination. Based on the document Petitioner was able to obtain, it appears that the examination he took included questions relative to the mechanics' lien law, workers' compensation law, first aid, OSHA regulations, federal tax law and the national electrical code. The state's Certified Electrical Contractor Exam includes a technical section, a general business section, and a safety section. The examination consists of 150 multiple choice questions, is an open-book test, and includes both a morning session and an afternoon session. Given that Petitioner took the examination more than 20 years ago, it is understandable that he can not recall all the questions and/or sections that were covered on the examination, and that he was unable to obtain a copy of the examination from any source. However, without a copy of the examination or other documents which sufficiently detail the contents of the examination Petitioner took in 1981, it is impossible to determine if that examination is substantially similar to the state examination. Petitioner failed to provide the Board with any information upon which it could make a determination that the examination he took is substantially similar to the state examination required for certification as an electrical contractor.
Recommendation Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioner's application for licensure as a certified electrical contractor. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002. COPIES FURNISHED: Robert C. Decker, Esquire Decker Beeler, P.A. 25 Second Street, North, Suite 320 St. Petersburg, Florida 33701 Barbara R. Edwards Assistant General Counsel Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 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 At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455, and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Lamar "Marty" Campbell was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Mr. Campbell readily acknowledges that he has not had training or education in construction or contracting and has never held any licenses related to any type of construction or contracting. At all times material to the allegations of the Administrative Complaints, Johnston Handyman Services did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Lamar Campbell, resides in Gulf Breeze, Florida. After Hurricane Ivan, he and his roommate took in Jeff Johnston, who then resided in Mr. Campbell's home at all times material to this case. Mr. Johnston performed some handywork in Respondent's home. Mr. Johnston did not have a car, a bank account, or an ID. Mr. Campbell drove Mr. Johnston wherever he needed to go. At some point in time, Mr. Campbell drove Mr. Johnston to obtain a handyman's license in Santa Rosa County. Mr. Campbell did not apply for the license with Mr. Johnston and Mr. Campbell's name does not appear on this license. The license is in the name of Johnston's Handyman Services. Mr. Campbell is a neighbor of Kenneth and Tracy Cauley. In the summer of 2005, which was during the period of time when Mr. Johnston resided in Mr. Campbell's home, the Cauleys desired to have repairs done on their home to their hall bathroom, master bathroom, kitchen and laundry room. With the help of Mr. Campbell and others, Mr. Johnston prepared various lists of repairs that the Cauleys wanted performed on their home. In August 2005, Mr. Johnson and Mr. Campbell went to the Cauley's home and the proposed repairs were discussed with the Cauleys. There are documents in evidence dated August and October, 2005, which the Cauleys perceive to be contracts for the repairs to be done in their home. However, these documents are not contracts but are estimates, itemizing both materials and labor. The documents have the word "Estimate" in large bold type at the top and "Johnston Handyman Services" also at the top of the pages. The list of itemized materials includes electrical items, e.g., light fixtures and wiring. Also in evidence are documents dated August and October, 2005, with the word "Invoice" in large bold letters and "Johnston Handyman Services" at the top of the pages. Both Mr. and Mrs. Cauley acknowledge that Mr. Johnston performed the vast majority of the work on their home. However, at Mr. Johnston's request, Mr. Campbell did assist Mr. Johnston in working on the Cauley residence. Between August 5, 2005, and October 11, 2005, Mrs. Cauley wrote several checks totaling $24,861.53. Each check was written out to Marty Campbell or Lamar Campbell.1/ Mr. Campbell acknowledges endorsing these checks but asserts that he cashed them on behalf of Mr. Johnston, who did not have a bank account or identification, and turned the cash proceeds over to Mr. Johnston. Further, Mr. Campbell insists that he did not keep any of these proceeds. The undersigned finds Mr. Campbell's testimony in this regard to be credible. Work on the project ceased before it was finished and Mr. Johnston left the area. Apparently, he cannot be located. The total investigative costs, excluding costs associated with any attorney's time, was $419.55 regarding the allegations relating to Case No. 06-2764, and $151.25 regarding the allegations relating to case No. 06-3171, for a total of $570.80.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1), Florida Statutes; imposing a fine of $500 for a violation of Section 489.531(1), Florida Statutes, and requiring Respondent, Lamar Campbell, to pay $570.80 in costs of investigation and prosecution. DONE AND ENTERED this 9th day of March, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2006.
Findings Of Fact At all times material hereto, Respondent has been licensed as a certified electrical contractor in the State of Florida, having been issued License No. EC0000971. At all times material hereto, Respondent has been the sole qualifying agent for AAA Quality Electric, Inc. (hereinafter "AAA"), a California corporation with its principal office located in Riverside, California. At all times material hereto, Respondent has been a permanent resident of the State of California. By Order of Emergency Suspension of Licensure entered on September 12, 1990, by the Secretary of the Department of Professional Regulation, Respondent's license as a certified electrical contractor in Florida was summarily suspended. At the time, Respondent held either master's licenses or contractor's licenses in 21 states and held hundreds of city licenses. Between January, 1989 and June, 1990, AAA operated in 11 states. During that time period, AAA had as many as 65 people working in the office in California, with as many as 85 electricians in the field. During that time period, AAA had as many as 14 electricians working in the State of Florida. AAA only hired electricians who possessed either a journeyman's or a master's license in the jurisdiction where they worked since that level of licensure enables that electrician to work without direct, on-the-job supervision. AAA advertised when a position was open and administered to job applicants an examination which AAA considers equivalent to a journeyman's examination. To be hired, one needed to pass the examination. AAA would also require that a new employee provide AAA with his or her license number or a copy of his or her current licensure. AAA also employed area supervisors and regional supervisors. Respondent was available to any of the journeymen or masters working for him either by telephone or by sky pager at all times. If anyone doing an installation had a problem, that person could contact Respondent to discuss the problem with him. Respondent's permit-pulling policy was to pull a permit whenever one was required. He had on file, in the various jurisdictions, letters allowing one of his employees to pull permits under his State of Florida license number. For example, in Pompano Beach, which is located in Broward County, Respondent had on file a letter allowing Bill Mopis to pull permits under Respondent's license even though Mopis held a master's license in Broward County and could pull permits under his own license number. By the time that Petitioner suspended Respondent's license to practice electrical contracting in the State of Florida, Respondent had changed his permitting policies so that a permit was pulled for any type of work performed in the State of Florida. AAA advertised in newspapers and in telephone directory yellow pages. When a request for service was made, one of the journeymen or master electricians employed by AAA would be dispatched to the work location. AAA in California was aware of which employee had been dispatched to perform which job. On the day following the job, AAA would call the customer to make sure that the customer was satisfied by the work that had been performed. In March, 1989, Anna and Rudolf Reider contacted AAA pursuant to an ad in the telephone directory yellow pages and requested that an electrician come to their residence to install a ceiling fan. The residence was located in Pompano Beach, Broward County, Florida. Terry Stewart, who holds a master's license from Broward County, responded to their call. When he arrived, Mrs. Reider explained to him that she also wanted a wall outlet which was located behind her bed in a different room to be moved a few feet to the side in order to make it accessible. Stewart took down a light fixture from the ceiling and replaced it with a ceiling fan. He also moved the wall outlet located in the master bedroom by running conduit along the wall and mounting a metal outlet box on the wall in the outlet's new location. Stewart charged the Reiders $391.30, which represented the rate of $46.50 per 1/2 hour plus materials. He also applied a senior citizen discount of 10% to the labor portion of the bill. The hourly rate charged by Stewart was that rate which was quoted over the telephone by AAA to Mrs. Reider when she placed the service call and is in accordance with the labor rate reflected on the work order. The Reiders were satisfied with the ceiling fan installation and with the price charged by Stewart. Although Mrs. Reider had shown Stewart an electrical installation located on her porch, which installation is a pipe with wires inside, and told him that was what she expected, and although she admits that she knew that the new wall outlet would not look the same as the other outlets in the room because there had to be an exposed pipe on the wall, she and her husband were dissatisfied with the appearance of the wall outlet extension in their bedroom. Mrs. Reider subsequently contacted AAA, and Stewart returned her phone call. He advised her that he was willing to come back to her residence and change the appearance of the installation by using a smaller pipe, but he would need to charge her $46.50 for the return service call. Mrs. Reider was unwilling to pad any additional monies for Stewart to return and has never had that work accomplished. Both the ceiling fan and the extended wall outlet work properly. Stewart did not obtain a permit before performing the electrical work. There was no licensure barrier to Stewart obtaining a permit and the inspections that attend the obtaining of a permit since at the time Respondent was licensed by Petitioner, AAA had an occupational license to perform work in Broward County, and no occupational license was required for the City of Pompano Beach since AAA did not maintain an office within that municipality. When Stewart completed the job, he gave the Reiders a 5-year extended warranty, and both Mr. and Mrs. Reider signed the work order authorizing the work and payment therefor, and acknowledging satisfactory completion of the work. The Chief Electrical Inspector for the City of Pompano Beach believes that an electrician, to work without supervision, must be either a journeyman or a master electrician, which Terry Stewart was. The City of Pompano Beach has taken no action against AAA for failure to pull a permit for the Reider job. Although the Chief Electrical Inspector believes that a permit is required for any electrical work performed within the City of Pompano Beach, as provided in the City's permitting ordinances at Section 301.1(e), Section 301(b) (2) sets forth exceptions to the permitting requirements and provides that: No permit shall be required, in this or any of the following Sections, for general maintenance or repairs which do not change the Occupancy and the value of which does not exceed Eight Hundred Dollars ($800.00) in labor and material. ... At the time that AAA performed the work at the Reider residence, the ad which appeared in the yellow pages portion of the telephone directory did not contain Respondent's license number. The City of Pompano Beach has adopted the South Florida Building Code which adopts the National Electrical Code. The National Electrical Code provides that the bonding jumper is to be a green wire or the wire is to be left bare. In the receptacle installed by Stewart, a white wire was used for the bonding jumper. That violation of the National Electrical Code is easily remedied by stripping the white wire bare or by substituting a green wire. Such work is covered under the warranty given by AAA to the Reiders. Although the 1990 National Electrical Code prohibits the use of outlet boxes as the sole support for a ceiling fan and provides an exception from that requirement, the evidence is unclear as to the requirements of the National Electrical Code in force at the time the work was performed. Within the electrical trade, taking down an existing light fixture and replacing it with a ceiling fan and moving a wall outlet are considered to come within the definition of repair and maintenance work. Accordingly, the work performed by AAA at the Reider residence was excluded from permitting requirements both by definition and by cost. Mary Scalza is the owner of Rub-A-Dub Laundromat in West Palm Beach. Early Saturday morning, on June 2, 1989, she experienced a breaker box "blowout", which incapacitated 14 of her washing machines. She located AAA's ad in the yellow pages of the telephone directory and called. AAA quoted her the price for emergency, weekend repairs, and she agreed. Terry Stewart responded to the call. When he arrived at Rub-A-Dub, he saw that the breaker box was located between two rows of washing machines on the floor and next to the overflow drain. He advised Scalza that the location of the box was a code violation, and the box had to be relocated. He told her the approximate cost of doing so but told her that she would have to call AAA to verify with the Company what the cost would be. She told him that the cost of relocating the box was too expensive and implored him to effectuate some repair so that her machines would be operable as soon as possible. Stewart explained to her the dangerous nature of the location of the box but agreed to effectuate a temporary repair. Stewart was unable to replace the entire breaker box; rather, he replaced all inside parts, using the old box. Although Scalza denies that Stewart told her he was simply effectuating a temporary repair until Monday morning when he could obtain the proper parts from a parts supply company, the work order signed by Scalza conforms with AAA's policies regarding temporary repairs. Specifically, the work order provides that no guarantee was given for the work. It is clear that Stewart did return to Rub-A-Dub Monday morning, and Scalza refused to let him touch the breaker box. When Stewart finished his temporary repair on Saturday afternoon, he submitted to Scalza a statement in the amount of $892.10. She gave him a check for $600.00 and paid him the balance in cash. When Scalza's husband came to the laundromat, he became very angry about the amount of the bill. On Monday morning, Scalza contacted the electrical inspector for the City of West Palm Beach, who came to the laundromat, looked at the work that had been accomplished, and "red tagged" the job due to the location of the breaker box. Scalza did not advise him that it was simply an emergency temporary repair. Scalza stopped payment on her check and contacted AAA, advising them not to return to complete the job. When an emergency repair is effectuated in West Palm Beach, it is Permissible for the permit to be pulled on the next business day. Since AAA was fired from the job on the next business day, AAA did not apply for a permit. Instead, AAA sent Stewart back to Rub-A-Dub to refund to Scalza the cash portion of her payment to AAA and to remove the parts Stewart had used for which Scalza would not pay. Scalza gave Stewart the parts which AAA had supplied which had already been removed by the other electrical company hired by her to do the work. That subsequent company did pull a permit for the work at Rub-A-Dub and did relocate the breaker box, which apparently Scalza authorized that company to do. The electrical inspector for the City of West Palm Beach agrees that the responsibility for pulling the permit on the Rub-A-Dub job was that of the subsequent company that effectuated the repairs and not the responsibility of AAA which had been fired from the job before it could pull a permit on Monday, the next business day following the emergency repairs effectuated over the weekend. Petitioner's witnesses agree that if the work done by AAA was a temporary repair for a few days, then the work that was accomplished by Stewart was, in fact, a safe, temporary repair. Further, it is a "judgment call" as to whether an electrician is required to bring electrical service up to code requirements, regardless of the nature of the work an electrician has been called upon to do. Further, anything involving water is always a "judgment call." Even Petitioner's expert would consider effectuating repairs to the breaker box in the location it was in when Stewart came to Rub-A-Dub if the box was completely enclosed and weatherproofed. No evidence was offered as to whether the box was completely enclosed and weatherproofed. Alton F. LaBrecque is an employee of AAA. He holds a journeyman's license from Pinellas County. Pinellas County and Hillsborough County have a reciprocal agreement regarding licensing, i.e., as long as a person holds a journeyman's license from one of those counties, he is not required to obtain a journeyman's license to work in the other county which is on the other side of the bridge. It is the practice in both Pinellas and Hillsborough Counties that if a journeyman who is licensed in one of those counties shows his card to an inspector from the other county, that is all that is required by the inspector of the other county to insure himself that the journeyman is properly licensed. The City of Tampa, which is in Hillsborough County, allows Hillsborough County to regulate licensing. If a person is licensed to work in Hillsborough County, then he is also licensed to work within the City of Tampa. At all times material hereto, AAA had an occupational license to work within the limits of the City of Tampa. On September 26, 1989, Heidi Bekiempis contacted AAA to request that someone come to her residence in Tampa to replace a dimmer switch. Alton LaBrecque responded to that call. When he arrived at the Bekiempis residence, Mrs. Bekiempis also advised him that certain lights within the house were flickering. LaBrecque replaced the dimmer switch which had been completely burned. It is LaBrecque's practice to involve the customer in the work that he is doing as much as possible so that they understand what is being done and why. When he checked the breaker box, he noticed that there were loose connections within the breaker box. He had Mrs. Bekiempis "running around the house" turning lights on and off while he tightened wires and checked the breakers. LaBrecque tested each breaker in the box with a digital meter and then with an infrared tester. Using the two different pieces of equipment, he tested both the line side and the load side of the breakers while they were carrying a full load. He discovered that three single-pole 20-amp breakers and one double- pole 60-amp breaker were consuming electricity as it passed across the breakers. Manufacturer specifications allow a breaker to consume up to .029 volts. The four breakers in question were each consuming one volt which is equal to 120 watts. He understood that the implication of the fact that those breakers were "hot" and consuming electricity meant that they would not trip properly and there was a danger of wires burning or even a fire starting. He also understood that a bad breaker had been the cause of the dimmer switch burning. Although his work order completed at the time indicated that a breaker was only giving off 87-93 volts and he testified at the final hearing that each of the breakers was consuming one volt, even the one volt consumption testified to at the final hearing was sufficient to show that a dangerous condition existed and the breakers needed replacing. Even though Mrs. Bekiempis denies authorizing the replacement of the circuit breakers, she does admit that LaBrecque told her about the danger of a fire, and she signed the work order after completion of the job acknowledging the satisfactory completion of the work. That work order clearly reflects the replacement of the breakers, the results of LaBrecque's testing, the reason why the breakers were replaced, and an itemized listing of the costs for the replacement breakers. It is found that Mrs. Bekiempis authorized replacing the breakers. Mrs. Bekiempis paid AAA $384.00 for the work performed. The replacement dimmer switch works properly, and the Bekiempis' lights stopped flickering after LaBrecque replaced the bad breakers. Mrs. Bekiempis unsuccessfully tried to stop payment on her charge card for all of the work performed by AAA. Between September 26, 1989, and February 15, 1990, the replaced breakers and the replacement breakers were primarily in the possession of Mr. and Mrs. Bekiempis. During that time, Mr. Bekiempis gave breakers to two different electricians for testing. On February 15, 1990, he gave breakers to an investigator for the Department of Professional Regulation. On February 20, 1990, the investigator gave breakers to Joe Bolesina, the Chief Electrical Inspector for Pinellas County. At some subsequent time, Bolesina marked four breakers and gave them to a clerk in his office to send to General Electric for testing. When Bolesina subsequently received breakers from General Electric, he returned them to Petitioner's investigator who retained custody of them until his deposition was taken in this case on October No explanation was offered as to how the breakers which were marked as an exhibit to the deposition of Petitioner's investigator on October 10 got to the deposition of Joe Bolesina taken on October 11 at which time the breakers were marked as an exhibit to his deposition. No explanation was offered as to who had custody of the breakers between October 11 and the time they were produced at the final hearing commencing on October 17, 1990. It is probable that the breakers that were marked at some unidentified time by Joe Bolesina are the same breakers which were admitted in evidence at the final hearing in this cause since the tags placed on the breakers by Bolesina remain on the breakers. However, there is no basis for assuming that the breakers which were replaced by LaBrecque five months before Bolesina received them and marked them were the same breakers that were replaced by LaBrecque. During the afternoon of Saturday, March 17, 1990, a tornado blew down a huge oak tree located in the front yard of the residence of Clarence Cruey in the City of Tampa. As it fell, the tree tore the entire electrical service off the front of the Cruey residence, including the meter, the riser, and the wires. The customer had no power at all. Cruey looked in the yellow pages to find an electrical contractor who would come to his residence immediately to effectuate the repair work even though it was still storming. AAA responded to his call, quoted to him its rates for 1-hour emergency service, and dispatched Alton LaBrecque and another AAA employee to perform the services. The two men worked there in the dark and in the rain for four hours, replacing Cruey's electrical service. Few of the parts were capable of being reused since they had been damaged by the tree or because they did not meet code requirements. For example, a Delta surge arrester had been used previously, and that type of equipment was, at the time, illegal in Tampa. AAA completely replaced the riser, hub, meter can, meter socket, wiring, and many other parts. At the conclusion of their work, AAA presented an itemized bill to Cruey in the amount of $2,556.17, and Cruey signed the acknowledgment that all work had been performed satisfactorily. He paid for the work by credit card but subsequently stopped payment, and AAA has been paid no monies for their labor or material regarding the Cruey job. Since the work at the Cruey residence was performed on an emergency basis on a Saturday, on the following Monday LaBrecque went to pull the permit for the work. Employees at the City of Tampa would not accept his permit application saying that he was not authorized to pull a permit for AAA and that a copy of AAA's workmen's compensation insurance was not on record with the City. Although authorization letters had been previously submitted, and although a copy of the insurance certificate had been filed with the City in January when AAA's City of Tampa occupational license was renewed, LaBrecque had AAA send additional copies of those documents to the City. When he again attempted to apply for the permit, the City advised him that they still did not have copies of those documents. LaBrecque contacted AAA and another set of documents was provided to the City. When LaBrecque returned, he was told that the documents still had not been received. When LaBrecque hand- carried another set of those documents to the City and "stuffed it in their faces," they accepted his permit application, ten days after he first applied. The permit itself was not issued for several months, and by the time of the final hearing in this cause the City had still refused to make the required inspection although Respondent had called for the inspection a number of times, including once on the record during a hearing conducted by the Unified Construction Trades Board of the City of Tampa. Although refusing to make an official inspection, the Chief Electrical Inspector for the City of Tampa inspected the work at the Cruey residence on an "unofficial" basis. Based upon that unofficial inspection, he concluded that AAA had replaced parts that did not need replacement and that AAA had not done all of the work for which it had charged Cruey. On July 3, 1990, the Unified Construction Trades Board of the City of Tampa revoked Respondent's permitting privileges for 1 year for the work done at the Cruey residence. On August 7, 1990, the Unified Construction Trades Board of the City of Tampa suspended Respondent's permitting privileges to run concurrently with the revocation entered on July 3, 1990. On September 11, 1990, based on the fact that the City of Tampa had taken disciplinary action against Respondent, the Electrical Board of Adjustment, Appeals and Examiners of Hillsborough County suspended Respondent for a period of 5 years. These two disciplinary actions are not involved in the Administrative Complaint filed against Respondent in this cause, and proof of them was offered by Petitioner for the sole purpose of aggravation of any penalty to be assessed against Respondent. Photographs admitted in evidence at the final hearing in this cause clearly refute the testimony given by the Chief Electrical Inspector for the City of Tampa which resulted in the July 3, 1990, revocation of Respondent's permitting privileges. The photographs reveal the work done by AAA and also depict the damaged parts which were replaced by AAA since those damaged parts were still lying in Cruey's yard at the time the photographs were taken. Respondent was prohibited by the Unified Construction Trades Board from offering the photographs and other evidence in defense of the charges then pending against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against Respondent in this cause. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of November, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-6172 Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 2-5, 7, 10, 16, 17, 20, 23, and 25-27 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 6, 9, 11-15, 18, 19, 22, and 28 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 8 has been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed findings of fact numbered 21, 24, and 29 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 1, 4, 4.1, 5-7.5, 7.9, 7.10, 7.13-7.16, 8, 8.1, 8.3-8.6, 8.8, 8.9, 9.0, 9.2-9.7, 9.10, 9.12-9.14, 9.16- 9.20, 10, 10.1, 10.3, 10.4, 10.6-10.19, 10.21-10.23, 12-12.8, 13.9, and 13.10 have been rejected as not constituting findings of fact but rather as constituting conclusions of laws, recitation of the testimony, or argument of counsel. Respondent's proposed findings of fact numbered 2, 3, 7.6-7.8, 7.11, 7.12, 8.2, 8.10-8.12, 9.1, 9.8, 9.11, 9.15, 10.20, 11-11.2, 13.2, 13.4-13.8, and 13.11 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 8.7 has been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed findings of fact numbered 10.2, 10.5, 13, 13.1, and 13.3 have been rejected as being unnecessary for determination of the issues herein. COPIES FURNISHED: Daniel O'Brien Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Robert G. Harris, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 David M. Gaspari, Esquire Adams, Coogler, Watson & Merkel Suite 1600, NCNB Tower 1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069 Neil F. Garfield, Esquire World Executive Building, Suite 333 3500 North State Road Seven Fort Lauderdale, Florida 33319 Scott Anderson, Esquire 2033 Main Street, Suite 402 Sarasota, Florida 33427 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Petitioner's application to qualify two additional business entities should be granted.
Findings Of Fact Petitioner, David Rheaume, has been an electrician since about 1960. Petitioner is a certified electrical contractor, holding Florida license number EC 13003139. Petitioner currently serves as the primary qualifier for two companies, David's Electric Service, Inc. (David's Electric), in Fort Myers, and Primary Electric of Southwest Florida, Inc. (Primary Electric), in Cape Coral. As the primary qualifier for David's Electric and Primary Electric, Petitioner is responsible for the supervision of all operations of the business organization, for all field work at all sites, and for financial matters, both for the organization in general and for each specific job. § 489.522(1)(a), Fla. Stat. (2006). David's Electric is wholly owned and operated by Petitioner. He is the sole officer and employee. On average, Petitioner works three-to-four hours per day, five or six days per week, doing mostly service work and upgrades. He gets most of his work from the local pennysaver-type advertising circular, and his schedule depends on the number of calls he receives from customers. He may work for six hours on one day, and not at all on the next. Petitioner considers himself semi-retired, and no longer undertakes new home installations. Petitioner is able to make his own flexible schedule as the owner/operator of David's Electric, and believes that he will be able to supervise the operations of the additional entities for which he seeks to act as qualifier. Primary Electric performs electrical service work and the wiring of newly constructed houses. Petitioner spends a "couple hours a week at the most," supervising the electrical contracting work of Primary Electric. The owner/operator of Primary Electric calls Petitioner when a job is ready for inspection. Petitioner then goes to the job site and checks to make sure the job has been done properly before the county inspector arrives. The owner/operator consults Petitioner if he has a problem understanding the blueprints on a job. The staff of Primary Electric consists of the owner/operator and two helpers. Petitioner is officially the vice president and owns ten percent of the company. He serves in a consulting capacity, and performs no physical work for Primary Electric. At the hearing, Petitioner identified the owner/operator of Primary Electric as "Don," and could not, with confidence, recall "Don's" surname. Don supervises the business on a day-to-day basis. Petitioner knew that Don's wife "signs all the checks," but was not certain whether she has an official position in the company. The checkbook and financial records are forwarded to the office of Petitioner's CPA, where Petitioner checks them. Don, the owner/operator of Primary Electric, is not a licensed electrical contractor. Petitioner allows Don to hire and supervise the helpers who work on Primary Electric's job site. Petitioner readily conceded that he knows nothing about the hiring or qualifications of the helpers, and that he relies on Don to address any problems with faulty work performed by the helpers. Primary Electric has pulled permits and performed electrical contracting jobs without Petitioner's prior knowledge. Petitioner testified that he allowed Don to go to local building departments and pull permits for electrical contracting jobs without prior consultation with Petitioner, because "I have that much faith in him." Petitioner acknowledged that on some smaller jobs, such as additions or service work, the owner/operator of Primary Electric has finished the jobs and gone through final inspections without ever notifying him. In response, Petitioner told Don to "at least call me." Petitioner applied to serve as the primary qualifier for Dolphin Electric of SW Florida, Inc. (Dolphin Electric), a start-up company based in Cape Coral. Vincent Sica is the president of Dolphin Electric, and Petitioner is the vice president and ten percent owner. Mr. Sica is a friend of Petitioner, and formerly worked for Petitioner at David's Electric. Mr. Sica was denied an electrical contractor's license by the Board, then asked Petitioner to serve as his qualifier, thereby allowing Dolphin Electric to work in the field of electrical contracting. Dolphin Electric, if approved as an additional business under Petitioner's license, would operate as an electrical contracting business focusing primarily on wiring new custom houses built by Mr. Sica's brother, who is a general contractor. Mr. Sica and his son would perform the work. Petitioner will perform no physical work for Dolphin Electric. Petitioner intends to supervise Dolphin Electric in the same manner that he supervises Primary Electric, including allowing Mr. Sica to pull permits for electrical jobs without first consulting Petitioner. According to Petitioner, Mr. Sica was an electrician in New Jersey and is very qualified. Petitioner stated that he would likely supervise Dolphin Electric a little more closely, if only, because he and Mr. Sica are friends and spend a lot of time together. Petitioner applied to serve as the primary qualifier for Mill Electrical Contractors, Inc. (Mill Electric), a start- up company based in Fort Myers. Terry Gaschk is the president of Mill Electric, and Petitioner is the vice president and ten percent owner. Mr. Gaschk is a friend of Petitioner, and worked for Petitioner at David's Electric during a busy time. Although he has only known Mr. Gaschk for one year, Petitioner testified that Mr. Gaschk is "like a brother" to him and is a better electrician than Petitioner. When Mr. Gaschk wanted to start his own company, Petitioner was willing to serve as his qualifier. Mill Electric, if approved as an additional business under Petitioner's license, would probably operate as an electrical contracting business focusing primarily on wiring newly constructed houses. Petitioner was not sure of Mr. Gaschk's intentions, because of the current softness of the residential construction business. Petitioner guessed that Mill Electric would stay a one-man operation doing service jobs until the market improves. Petitioner intends to supervise Mill Electric in the same manner that he supervises Primary Electric, including allowing Mr. Gaschk to pull permits for electrical jobs without first consulting Petitioner. Petitioner did not demonstrate intent to adequately supervise the operations of the proposed additional entities, Dolphin Electric and Mill Electric. At Petitioner's application request hearing, the Board's chief concern was the appearance that Petitioner was engaged in a "license selling" scheme with his friends. At the de novo hearing before the undersigned, Petitioner did little to put this concern to rest. Petitioner's intent is to continue working part-time for his own company, and to allow his friends to run the day-to- day operations of the two start-up companies, including the hiring and supervision of employees, the pulling of permits for electrical work, and the performance of that work without the direct supervision of a certified electrical contractor. In general, Petitioner would be consulted when there is a problem with the work, or when his presence is required for an inspection. The undersigned does not find that Petitioner had any conscious bad intentions in making his applications. Petitioner sincerely believes that Mr. Sica and Mr. Gaschk are at least as proficient in the field as is he, and is confident enough, in his opinion, to risk his license on their behalf. However, Petitioner's casual manner of supervising the work of his friends, coupled with the sheer volume of supervisory work that he proposed to undertake for a total of three companies plus his own, caused reasonable doubts in the mind of the Board. Unfortunately, Petitioner was unable to dispel those doubts in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: A final order be entered denying Petitioner's applications to qualify Dolphin Electric of SW Florida, Inc., and Mill Electrical Contractors, Inc. as additional business entities. DONE AND ENTERED this 8th day of March, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of March, 2007. COPIES FURNISHED: Reginald D. Dixon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Howard Andrew Swett, Esquire Knott, Consoer, Ebelini, Hart & Swett, P.A. 1625 Hendry Street, Suite 301 Fort Myers, Florida 33901 Anthony B. Spivey, Executive Director Electrical Contractors' Licensing Board 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the charged violations of Sections 489.127(1)(f) and 489.531(1), Florida Statutes, as set forth in the Administrative Complaint, and, if so, what if any penalty is warranted.
Findings Of Fact On or about December 11, 2006, the Respondent entered into a contract with Ms. Carolyn H. Wilson for remodeling work, at Ms. Wilson's home in St. Petersburg, Florida. The scope of the work included in the Respondent's "Quotation" or their agreement, involved structural work, plumbing, and electrical work. The Respondent presented himself as being properly licensed for the work which he contracted to perform at Ms. Wilson's property. The Respondent had dictated the terms of the agreement or contract to Mr. Caleb Alfred who wrote the terms required by the Respondent into the "Quotation" form provided by the Respondent. Mr. Alfred was paid a $200.00 commission for referring Ms. Wilson and her job to the Respondent. Mr. Alfred is not affiliated in any way with the Respondent, however, and was a coworker at a local school with Ms. Wilson, who was the Assistant Principal. Ms. Wilson understood that she was contracting for work to be done by the Respondent and not by Mr. Alfred. The Respondent and Ms. Wilson signed the "Quotation" form as the contract for the project. The Respondent was never licensed to engage in any category of contracting in the State of Florida at any time material to the facts in this case and to the allegations in the Administrative Complaint. On December 11, 2006, the Respondent was paid $7,000.00, by Ms. Wilson's check no. 1022, the day the agreement was entered into. Thereafter he was paid $11,000.00 on December 19, 2006, by check no. 1024 issued by Ms. Wilson. He was paid on December 21, 2006, $1,400.00 by check no. 1025 and another $3,000.00 on December 22, 2006, by Ms. Wilson's check no. 1026. The Respondent also incurred some additional charges on Ms. Wilson's Home Depot and Lowes accounts for certain tools and items which he kept after he left the job. The Respondent maintains that he kept those tools as a remedy for work that he had performed for which Ms. Wilson had not paid him. The work the Respondent contracted to do required a permit. No permit of any kind for the referenced project was ever obtained. The electrical work to be performed by the Respondent included the installing of 10 recessed lights and two outlets. The lights to be installed, some of which were installed by the Respondent, were plug-in lights. The outlets installed by the Respondent involved merely screwing existing wires into the new outlets. They did not involve the addition of any wiring to the project or the home. The dishwasher to be installed by the Respondent did not actually involve plumbing. The plumbing work was already done and was existing at the site. The Respondent merely had to screw the plumbing outlet on the dishwasher to the standing plumbing or pipe. The installation of the flooring and the installation of the wall in the residence accomplished by the Respondent was structural work and constituted contracting. The wall was installed and was attached to the trusses of the structure. The flooring portion of the project involved installation of the hardwood flooring and the pad beneath, the charge for which totaled approximately $15,400.00 itself. The Respondent is a native of Trinidad. While residing in Trinidad he built houses. He therefore is quite experienced in construction. He has a "handyman" license from the City of Sanford. That handyman license prohibits electrical repair or replacement of any type, roof repair, installation of exterior doors and windows, and any work that requires a permit. The Respondent apparently was of the belief that he was authorized to do the type of work at issue, based on the strength of holding handyman license. Additionally, the handyman exemption from licensure which is provided in Section 489.103(9), Florida Statutes, references contracts under $1,000.00 dollars. It also requires, for an exemption, that the work involved not require any permitting. Neither is the case here, the work involved much more than $1,000.00 and did require permitting, at least in part. The Respondent apparently finished most of the job at issue. It is debatable whether he finished the dishwasher installation which merely involved placing it and screwing it into the already existing plumbing outlet. There is apparently a dispute over whether he was to install cabinets. The Respondent maintains that Ms. Wilson was to purchase and have installed the cabinets. It is therefore debatable, and not clear from the evidence of record, whether the Respondent is indeed still owed money by Ms. Wilson, or whether he charged more money for his work during the course of the project than they had agreed to and therefore owes her a refund. In any event, the monetary dispute is not of direct relevance to the question of the violations charged in the Administrative Complaint. The Department adduced testimony of its investigator concerning investigative costs. She thus testified that she had no recollection of how many hours or how much time she had expended in investigating the case culminating in the Administrative Complaint. She testified that she relied on a computer time-tracking program of the Department. But no such record was offered into evidence, nor the custodian of such record to testify. Consequently, the cost figure asserted by the Department as investigative cost for this proceeding of $520.18 has not been proven by persuasive, competent evidence.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that the Respondent violated Sections 489.127(1)(7) and 489.531(1), Florida Statutes, and imposing an administrative penalty in the amount of $2,000.00. DONE AND ENTERED this 29th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2008. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barry Rigby, Esquire Law Offices of Barry Rigby, P.A. 924 North Magnolia Avenue, Suite 319 Orlando, Florida 32803 G.W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
