Findings Of Fact The Respondent, Claude Janson, is a registered electrical contractor. He holds license number ER005208 and is the qualifying agent for J.R. Electric, Inc., which is the firm under which he practices electrical contracting. The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards embodied in Chapter 489, Florida Statutes, and related rules as they relate to electrical contractors. At all times material hereto Bob Sangelo was not licensed as an electrical contractor. The Respondent was aware that Sangelo was not so licensed. On or about April 27, 1984, the Respondent authorized Sangelo, who was then unlicensed, to obtain electrical contracting permits on behalf of the Respondent's firm, J.R. Electric, Inc., from the Cape Coral, Florida building department. On or about January 15, 1985, Sangelo, d/b/a Sangelo's Electric, submitted a written bid proposal to Mr. Bill Sutherland to perform electrical contracting at Sutherland's residence In Cape Coral, Florida. The two parties agreed to a contract price of $1750 for the work. Thereafter on February 28, 1985, Sangelo submitted a second written proposal containing revisions to the proposed contract, and work to be done, which provided for a contract price of $1875. All negotiations leading to the contract for the electrical work occurred between Sangelo and Sutherland. Sutherland had no contact with the Respondent, Claude Janson, and at the time did not even know him. The Respondent provided no assistance and had no part in the preparation of the estimate or bid involved in the performing of the electrical contracting work for Mr. Sutherland. The electrical work proposed to be performed by Sangelo required an electrical permit to be obtained by a licensed electrical contractor from the City of Cape Coral. On March 8, 1985, Sangelo obtained the electrical permit numbered 0329685 from the City of Cape Coral using the firm name J.R. Electric, and the contracting license number ER005208. The permit was for the electrical work to be performed by Sangelo for Mr. Sutherland at his residence, but the permit was issued because of Sangelo's representation that the contractor would be J.R. Electric, Inc., using the Respondent's license number. Sangelo Electric was never qualified by the Respondent as a business entity under which he practiced electrical contracting under his own license. Sangelo Electric was Bob Sangelo's independent business with no connection, other than friendship, with the Respondent or the Respondent's electrical contracting business. The Respondent and Sangelo had an informal friendly relationship in which Sangelo would help the Respondent with his electrical contracting jobs in exchange for the Respondent referring him electrical service work. Sangelo did not receive an hourly wage from the Respondent and the informal friendly relationship was never reduced to writing. Sangelo was not a regular employee of the Respondent, but rather functioned much like a subcontractor. The Respondent had previously authorized Sangelo to obtain electrical permits on the behalf of and in the name of the Respondent and J.R. Electric, Inc., the Respondent's firm. The Respondent was also aware that Sangelo did electrical contracting work on his own without being licensed.
Recommendation Having considered the foregoing Findings of Fact and 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 the Respondent be found GUILTY of the violations as charged in the Administrative Complaint and that he be fined the sum of $1,000. DONE and ORDERED this 18th August, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1986. COPIES FURNISHED: Charles F. Tunnicliff, Esq. Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Claude Janson 925 Country Club Boulevard Cape Coral, Florida 33904 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Pat Ard, Executive Director Board of Electrical Contractors Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The parties stipulated that the Petitioner's financial responsibility and morals were not an issue. The only basis for the Board's denial was the Petitioner's alleged lack of experience. Petitioner and Respondent submitted proposed findings of fact which were read and considered. These proposals are discussed in detail in the Conclusions of Law.
Findings Of Fact Petitioner is presently employed as an electrical inspector for Hillsborough County, Florida. He has held this position for approximately two and one-half (2 1/2) years. He holds a master's electrician's license issued by Hillsborough County but is prohibited by terms of his employment as an electrical inspector from engaging in any electrical contracting activity. Petitioner is technically experienced as an electrician. Prior to his employment as an electrical inspector, Petitioner was employed by Mobil Chemical Company which operates several phosphate mines in central Florida. The Petitioner was employed at its Fort Meade mine. The Fort Meade mine, or plant, is a substantial operation producing approximately four (4) million tons of phosphate per year at the time when Petitioner was employed. The mining area occupies several hundred acres and the working or processing area occupies approximately ten (10) of those acres. The working area comprises of a flotation plant, a washer plant, a sizing section, a shipping area where the rock is loaded on railroad cars, a maintenance area, and an office complex. The plant ran three (3) shifts around the clock and employed approximately one hundred (100) persons. All of the major equipment to include the 30 and 40 yard draglines at the Fort Meade plant alone contained in excess of one hundred (100) electric motors each with its own fuse box and disconnect. The Petitioner was employed by Nobil Chemical Company for twenty (20) years (1962-1982); 16 years as an electrician and four years as supervisor of the electrical maintenance at the Fort Meade plant. He was responsible for all electrical repairs, maintenance, and new construction at the plant for all three shifts. His direct superior was the department chief who was in charge of all the electrical departments at all of Mobil's phosphate mining locations. Approximately twenty (20 percent) percent of the Petitioner's time was spent on new construction projects. Approximately forty (40 percent) percent of petitioner's time was spent on regular maintenance and repairs. Fifteen (15 percent) percent of the Petitioner's time was spent on emergency repairs. The remainder of petitioner's time was spent on miscellaneous projects. Petitioner supervised a staff of ten (10) men: two (2) crewmen, four linemen, and four (4) electricians. The Petitioner was responsible for estimating the cost of jobs for his immediate superior to include the cost of materials and the number of man hours. The Petitioner was responsible for counting and reporting the number of hours his employees worked in turning this information into the company's payroll section. Petitioner had the power to request overtime work for his employees and made recommendations concerning hiring and firing personnel. On new construction the Petitioner's responsibilities began with doing takeoffs from blueprints provided for the job and supervising the work through to its completion. He was responsible for the maintenance and repair of the Fort Meade facility to include small electrical motors, large electrical motors, office lighting, transformers, and the large draglines. Petitioner's experience included experience with three (3) phase electrical power, high voltage electrical service, and lower voltages used in small motors, lights and appliances. The electrical department which the Petitioner headed provided service only to Mobil's Fort Meade plant. Mobil is not an electrical contractor; however, its electrical department provided extensive services which are comparable to those an outside electrical contracting service would have provided. Although the petitioner did not prepare a payroll for those persons who he supervised, he did serve as the clerk for his church for five (5) years during which time he was responsible for preparing the payroll for the church's employees. The petitioner applied in 1982 to sit for the electrical contractor's licensing examination. His application was approved by the Respondent and the Petitioner sat for the examination on two occasions, failing both examinations. Petitioner reapplied to sit for the electrical contractor's licensing examination in 1984 and was denied by the Respondent based upon lack of satisfactory experience. The Petitioner held a responsible management position with Mobil at the Fort Meade plant as supervisor of electrical maintenance at the Fort Meade facility for four (4) years. The Petitioner never negotiated a construction contract, was never bonded as a contractor, never obtained insurance to cover his operation as a contractor, and never sought a building permit for any of the electrical work done at the Fort Meade facility.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Electrical Contractors Licensing Board disapprove the application of Cecil U. Lane to sit for the statewide electrical contractor's license. DONE and ORDERED this 18th day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1985. COPIES FURNISHED: Mr. Jerry W. Hendry Executive Director Department of Professional Regulation Division of Electrical Contractors 130 North Monroe Street Tallahassee, Florida 32301 Eric S. Ruff, Esquire Post Office Box TT Plant City, Florida 33566 Arthur C. Wallberg, Esquire Department of Legal Affairs Suite 1601 The Capitol Tallahassee, Florida 32301 Mr. Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues are as follows: (a) whether Respondents each engaged in the unlicensed practice of contracting as defined in Sections 489.105(3) and 489.105(6), Florida Statutes (2006), in violation of Section 489.127(1)(f), Florida Statutes (2006); (b) whether Respondents each engaged in the unlicensed practice of electrical contracting as defined by Sections 489.505(9) and 489.505(12), Florida Statutes (2006), in violation of Section 489.531(1), Florida Statutes (2006); and (c) if so, what penalty should be imposed.
Findings Of Fact At all times material here, Respondents were married and doing business together as "B and P Enterprises of Central Florida, Inc." The "B and P" stands for Brenda and Phillip. Respondents are not and never have been licensed to engage in contracting or electrical contracting in Florida. In March 2006, Carla Adams had recently purchased her first home and sought to refinance it. The lender required an inspection of the home. The lender also required that any work on the home be performed by a licensed person or entity. In March 2006, an inspector employed by Pillar to Post, Inc., conducted an inspection of Ms. Adams' home. The inspection report, dated March 10, 2006, listed a number of areas that needed work and made recommendations for correction of those problems. In July 2006, Ms. Adams saw an advertisement in a newspaper for the sale of a used car. Ms. Adams and Rev. Tracey Davis went to Respondents' property with the objective of purchasing a used vehicle. While on the property, Ms. Adams and Rev. Davis entered the Respondents' home. Because both women admired the home, Respondents gave them a tour. During the tour, Respondents stated that Henley had performed the work himself. While in Respondents' home, Ms. Adams and Rev. Davis told Respondents that Ms. Adams needed work done on her home. Ms. Adams also told Respondents that her lender required that the work be done by a licensee. Henley, both upon his own volition and after being asked, told Ms. Adams and Rev. Davis that he was a licensed contractor. Henley removed a picture-ID card from his wallet and stated this was his license to practice contracting. Respondent Carpenter condoned this statement. Ms. Adams showed Respondents the March 10, 2006, inspection report. Henley assured Ms. Adams that he could do everything on the report that needed to be done. Henley further stated that his license was issued by “DBPR” - the Department of Business and Professional Regulation. Carpenter affirmatively agreed with this statement. Henley warned Ms. Adams that she should never have work done by anyone that was not licensed or certified and that she could check licensure status with DBPR. Respondent Carpenter affirmed this warning. Before speaking with Respondents, Ms. Adams and Rev. Davis had never heard of DBPR. It was only due to Henley’s reference to DBPR that Ms. Adams knew she could contact Petitioner regarding the issues in this case. Respondents advised Ms. Adams that they were willing to go to Ms. Adams’ home and give her an estimate of what they would charge to perform the needed work. Ms. Adams and Rev. Davis left Respondents' property expecting to see Respondents in the near future. In August 2006, Respondents went to Ms. Adams’ home in Tallahassee, Florida. Ms. Adams told Respondents she needed electrical, structural and plumbing work done as set forth in the Pillar-to-Post report. Respondents then inspected the home, took measurements, and made a verbal offer to perform the needed contracting work. Respondents returned to Ms. Adams’ home later in August 2006. At that time, Respondents presented Ms. Adams with a written estimate of what they would charge to do certain contracting work on her home. The proposal included, but was not limited to, structural, plumbing and electrical work. Respondents' proposal stated as follows in relevant part: REMOVE ALL OLD FLOOR COVERING Carpet Padding Lineoleum (sic) Square Stick tile Tack strip All of the above, but not limited to just above 1,470 Sq. Ft. @ $1.10 Sq. Ft. INSTALL NEW FLOOR COVERING 1,470 Sq. Ft. of tile on floor @ $1.75 Sq. Ft. and install Durarock (sic) or hardi (sic) backing board, if needed KITCHEN Remove wall and old 1/2 bathroom and put back to finished product Not including finishing drywall and painting drywall Remove all old plumbing and re-route Electrical wires HALL BATHROOM Remove bathtub, and tub walls Install durarock (sic) and new plumbing fixtures [a]s provided by homeowner Install 100 Sq. Ft. of wall tile around old tub area @ $1.75 Sq. Ft. [m]aking a new shower in the room Build a curbing, and drypack and install shower floor tile Install drain and rubber pan REMOVE OLD RAILING FROM FRONT PORCH The total price listed for the above referenced work was $5,234.50. Ms. Adams had received other estimates for the work. Therefore, Ms. Adams was pleased with the price and sought assurance that it would not increase. Respondents promised Ms. Adams that the cost would not increase. To further assure her, they both signed the contract in her presence. During the hearing, Henley admitted that he contracted with Ms. Adams to perform the labor as listed on this contract. In an attempt to ascertain Henley’s skill as a contractor, Ms. Adams decided to begin with the renovation of the bathroom located in the entrance way to the master bedroom. Ms. Adams agreed to buy the construction, plumbing, or electrical materials that Henley needed to do the work. Ms. Adams works two jobs and was not always home when Respondents performed the contracted work. As a result, Rev. Davis, who lived nearby, was present at the home to let Respondents in and observe the work. In order to enlarge the bathroom adjoining the master bedroom, Henley demolished a wall between the old bathroom and a walk-in closet. Henley also removed the door into the old bathroom and constructed a single wall with the entrance to the enlarged room through the door to the old closet. In the course of this alteration and expansion, Henley damaged the adjoining wall to the living room. He subsequently repaired the damage. In the enlarged bathroom, Henley removed a sink from the old bathroom area and installed it in the area that had been a closet. The area of the old closet had no plumbing. The removal and installation of the sink required Henley to remove old piping and replace it with larger pipes to increase the water flow. During the hearing, Henley admitted removing the sink and disconnecting the plumbing. Henley installed the custom-built shower as described in the contract in Ms. Adams’ bathroom. During the hearing, Henley admitted cutting a hole in the floor of Ms. Adams’ bathroom and installing a shower drain pan. Henley removed and replaced the toilet in Ms. Adams’ bathroom. Additionally, Henley, with Carpenter's help, removed the old bathtub. Henley admitted removing the bathtub and disconnecting the plumbing. Henley then installed a replacement Jacuzzi bathtub at the location of the previously-removed bathtub in Ms. Adams’ bathroom. Henley had to remove the old piping and replace it with larger pipes to increase the water flow for the replacement Jacuzzi. The toilet, sink, and bathtub removal and the shower- installation required plumbing work that made it necessary to turn off the water to the home. During the course of installing the Jacuzzi bathtub, Henley discovered that his work resulted in drainage problems he could not correct. For the first time, he told Ms. Adams that his license did not allow him to perform plumbing work. Henley then told Ms. Adams that, as the contractor on the job, he could subcontract the needed plumbing work. In early September 2006, Henley called Roto-Rooter as a plumbing subcontractor. Roto-Rooter performed the following plumbing work at Ms. Adams' home: Hooked up all the basic [drain] lines and the toilet in new bathroom to the m/l [main line]. Also ran water lines for the new sink, but found problem with shower valve. It was put in wrong and will not work until it's moved. Note: Everything else is working at this time. Price includes parts and labor. ( * * * out the tile and fix shower valve, not everything is working.) The Roto-Rooter invoice indicates a total cost in the amount of $1,432.78 for the work performed in Ms. Adams' home. Ms. Adams and Respondents had a financial dispute about which party had to pay Roto-Rooter. The dispute ultimately led to a falling out regarding the completion of the contracted work. Ms. Adams’ bathroom currently is inoperable because the toilet and Jacuzzi bathtub do not work. There is raw sewage underneath her home. In order to repair her bathroom, Ms. Adams received an estimate of approximately $5,000.00. Ms. Adams’ decision to begin with the renovation of her bathroom also involved ascertaining Henley’s skills as an electrical contractor. Based on his assurances that he could do the work, Ms. Adams allowed Henley to remove and relocate electrical light fixtures and switches in the bathroom, closet, and hallway. During the course of this work, Henley left hot wires exposed. On or about September 14, 2006, Carpenter came to Ms. Adams’ home and presented an invoice for $1,200.00 for the contracted work that had been performed pursuant to the initial contract. The invoice was on the letter head of “Brenda & Phillip, Phillip Henley, Inc." It stated as follows in relevant part: Remodel Master Bathroom Take out all fixtures-sink, cabinet, cast iron tub, toilet and replace with new Jacucci (sic) tub, new sink and cabinet, new shower and put back old toilet. Take out old tile on walls and drywall, take out two closets to enlarge bathroom. Re-wire and re-plumb all fixtures and installed durarock (sic) on floor, walls and wet areas and installed blueboard on balance of walls. Built a custom shower and installed custom tile design on walls and floor. Cost: $1,900.00 Less cash advances: 8/9 $100 8/16 $300 8/22 $300 $700 -700.00 $1,200.00 Plus: Materials & receipts: 8/11 $ 81.19 8/17 23.67 8/19 26.84 8/24 108.51 $240.21 +$240.21 Balance Due: $1,440.00 Other labor -240.00 $1,200.00 The invoice was signed by Henley and Carpenter and included the following statement: "Thank you for doing business with Brenda & Phillip!" The invoice stated that the check should be payable to Carpenter. Excluding costs associated with an attorney's time, Petitioner has expended $554 in total cost relative to the investigation and prosecution of DOAH Case No. 09-2541 against Carpenter and $1,005.67 in total cost relative to the investigation and prosecution of DOAH Case No. 09-2545 against Henley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that each Respondent violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes, imposing a total administrative fine in the amount of $11,000 against each Respondent, and assessing costs in the amount of $554 against Carpenter and $1,005.67 against Henley. DONE AND ENTERED this 23rd day of February, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2010. COPIES FURNISHED: Maura M. Bolivar, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Brenda Carpenter Phillip Henley 5209 Southwest U.S. 221 Greenville, Florida 32331 Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent has committed the acts alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes. Respondent is an officer and registered agent for GT Handy Solutions, Inc. Neither he nor his company is registered or certified to perform electrical contracting in the State of Florida. Respondent holds only an occupational license from the City of Palm Coast. On or about May 17, 2006, in DBPR Case No. 2006-005919, Respondent was issued a Notice to Cease directing Respondent to immediately cease and desist from all unlicensed electrical contracting work. Sometime after that point, the Jacksonville investigative office of DBPR received a tip from the City of Palm Coast that Respondent was still in the area engaging in unlicensed activity. The Department set up a sting operation with the assistance of the Volusia County State Attorney's Office and the Flagler County Sheriff's Office. Leslie Floyd Walker is employed as an investigator in the Volusia County State Attorney's Office. As part of the sting operation, Ms. Walker posed as a homeowner and called unlicensed people asking them to give estimates for electrical work to be performed at 11 Floyd Court, Palm Coast, Florida. The names of the unlicensed persons to be called were provided by the City of Palm Coast and were persons who advertised in the Palm Coast area or who had been cited previously for performing work without a license. Mr. Torres was one of the unlicensed persons called by Ms. Walker. On January 23, 2007, Mr. Torres was contacted at the telephone number contained in an advertisement in the Service Directory of the Flagler Pennysaver. In response to Ms. Walker's call, Mr. Torres came to the house at 11 Floyd Court, and Ms. Walker told him she wanted to replace three ceiling fans with new ones, and a light fixture, remove an existing light and add a light at the home. Mr. Torres and Ms. Walker's conversation was preserved via videotape. Mr. Torres was concerned about the wiring at the home, and asked to see the attic space. After doing so, he gave Ms. Walker an estimate of $800 to do the work, indicating that he would have to do some rewiring in order to put in the new ceiling fan she wanted. The estimate contemplated Ms. Walker providing the new ceiling fans. Ms. Walker asked Mr. Torres for a written proposal, which he started to prepare. However, he asked her if it was possible to mail it to her, because he needed to be able to make a copy for himself. He asked her about scheduling for the job, and indicated that he would be available the next week. He also stated that while the fans could be changed out in a few hours, the wiring would be more extensive and made the job a two-day job. Mr. Torres never provided the written proposal, and when Ms. Walker called and said he could do the work, he did not go back. At hearing, he said that he did not do so because he knew doing the electrical work was beyond the scope of what he was allowed to do. He claimed that he never actually offered to do the work, but instead had merely said that this type of work could be done for $800. The undersigned has viewed the videotape of Mr. Torres' conversation with Ms. Walker, and carefully listened to the conversation. At no time did he indicate to Ms. Walker that he was unable to perform the work she described. To the contrary, he discussed with her the aspects of the job that would make it more extensive, and what efforts he would have to make regarding the rewiring. While he may have ultimately determined not to perform the work, the evidence is clear that he provided a verbal proposal to perform the work at the time that he met with Ms. Walker at 11 Floyd Court. The Department has incurred investigative costs in the amount of $164.23.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent has violated Counts I and II of the Administrative Complaint, assessing an administrative fine in the amount of $5,000.00 and imposing investigative costs in the amount of $164.23. DONE AND ENTERED this 3rd day of October, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 3rd day of October, 2007. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 George Torres GT Handy Solution, Inc. 43 Russo Drive Palm Coast, Florida 32164 Nancy S. Terrel, Hearing Officer Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
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
Findings Of Fact Respondent is a licensed general contractor and pool contractor. He is employed by Sally Dysart, Inc., and is currently the qualifying contractor for that company. Additionally, Respondent has served as qualifier for ARK Swimming Pool Service, Inc. On June 6, 1981, Sally Dysart, Inc., contracted with Theresa Pica to construct a swimming pool at her North Lauderdale residence. On June 9, 1981, Respondent obtained a permit from the City of North Lauderdale to construct the Pica pool. The permit indicated that ARK Swimming Pool Service, Inc., was the contractor. The contract specified that the pool would measure 16 x 32 x 3 x 6 1/2 feet, with stainless steel walls. The contract allowed "minor variations in dimensions . . ." and provided that, "Dysart is authorized to use its discretion in making changes or additions if the customer is not immediately available." The pool as installed was 8 feet rather than 6 1/2 feet deep, and the walls were of aluminum rather than stainless steel. These changes were not approved by Theresa Pica and she complained to Petitioner regarding these changes and other problems which are not relevant to the charges herein. This was an 18 inch change in pool depth and could not be considered a minor variation in dimensions, nor could the change in materials be considered insignificant. Respondent should have, but did not, obtain the owner's concurrence before substituting the 8 foot aluminum pool for the 6 1/2 foot steel pool, which the contract called for. This installation was also held to be in violation of Broward County Ordinance Section 9-14(b)(9), by the local board having jurisdiction. Respondent was not properly registered as the qualifying agent for Sally Dysart, Inc., at the time of this project. He was registered as the qualifier for Ark beginning in 1977, but his application to qualify Sally Dysart, Inc., was not received by Petitioner until November 1981 and not issued until December 1981. A Julius Kaplan was also a qualifier for Sally Dysart, Inc., but his application was not received by Petitioner until October 1981. Sally Dysart, Inc., was therefore not qualified by a licensed pool contractor at the time this company undertook the Pica project. The permit was improperly drawn on Ark Pool Service, Inc., by Respondent since Ark was not a party to the Pica contract. Respondent demonstrated that the administrator for Sally Dysart, Inc., was attempting to secure a qualifier for this company between April and December 1981. Thus, while some effort had been made to qualify Sally Dysart, Inc., this had not been accomplished at the time the Pica project was undertaken. Sally Dysart, Inc., contracted with James J. Mirrione to install a spa for him at his residence in Boca Raton. The permit was obtained by Respondent on behalf of Sally Dysart, Inc., on April 23, 1981. As noted above, Respondent was not a qualifier for Sally Dysart until December 1981. No final inspection of the Mirrione installation was ever made. Respondent believed that officer personnel at Sally Dysart, Inc., had arranged for such inspection, but it was either not requested or requested but not performed. On June 25, 1981, Warren Schober contracted with Sally Dysart, Inc., to construct a pool at his Miami residence. He negotiated the contract with a Milton Wolf who he understood to be the sales manager for Sally Dysart, Inc. The project was completed, but Schober encountered problems with a defective light and leaks in the pool. The difficulties were eventually corrected and Schober is now satisfied with the installation. In late August 1981, Milton Wolf agreed to sell Dr. Ronald Scott a swimming pool for $5,970. Scott made an initial payment of $3,970 to Milton Wolf by cashier's check dated September 8, 1981. Scott believed he was dealing with Sally Dysart, Inc., since Wolf held himself out as a representative of that company. Although he had some reservations about making the check payable to Milton Wolf personally, he had contacted a Better Business Bureau to determine that Sally Dysart, Inc., was a reputable company. Further, Wolf was available when he telephoned him at the Sally Dysart, Inc., offices. Sally Dysart, Inc., later disclaimed the Wolf agreement but offered to honor it if Scott would turn over the balance due. However, Scott rejected this offer and it was later withdrawn. He did not receive the pool or return of his initial payment. The evidence did not establish whether or not Sally Dysart, Inc., approved the contract for sale of the pool negotiated by Wolf. However, there was no construction contemplated and therefore no active involvement by Respondent in his capacity as construction supervisor. On July 31, 1981, Milton Wolf, on behalf of Sally Dysart, Inc., contracted with Mr. William D. Black for the sale and installation of a swimming pool at the latter's Miami resident. By check dated August 28, 1981, Black made an initial payment of $4,585 to Wolf. Black left the payee portion of the check blank at Wolf's request on the representation that he would use a stamp to supply the Dysart firm name. Wolf later filled in his own name, cashed the check and absconded. Black had no reason to distrust Wolf as he had communicated with Wolf at Sally Dysart, Inc., and had checked on the company through the Better Business Bureau. Wolf held himself out as sales manager and this was not repudiated by Sally Dysart, Inc., until after Wolf absconded. Respondent obtained a permit for the Black project on October 13, 1981, and some of the initial approvals were made. However, by letter dated September 22, 1981, Sally Dysart, Inc. (by its president, Sally Dysart), advised Black that the company would attempt to complete the project only if he would pay the balance of all payments due. This letter also disclaimed responsibility for Wolf's representations. In response, Black demanded that Sally Dysart, Inc., honor the contract and proposed that remaining payments be placed in escrow pending satisfactory completion. This proposal was rejected, and Black did not obtain the pool nor was his $4,585 "deposit" returned. Respondent sought to establish that Milton Wolf was not authorized to act on behalf of Sally Dysart, Inc., but that he was merely present in the Dysart offices as a potential business partner. His contact with customers was purportedly limited to investigation of leads and company business potential. However, the testimony of a former Dysart employee established that Wolf did make sales and brought in cash receipts to the company prior to his defalcation. Therefore, regardless of any private understanding between Sally Dysart, Inc., and Milton Wolf, the latter was holding himself out to the public as a company representative with the knowledge and approval of Sally Dysart, Inc.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent's contractor licenses for a period of ninety (90) days. DONE AND ENTERED this 16th day of May, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May 1984.
The Issue Whether Respondent violated Subsection 489.531(1), Florida Statutes (2003),1 by engaging in the unlicensed practice of electrical contracting, and, if so, what disciplinary action should be imposed.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times material hereto, Respondent was not licensed or had ever been licensed to engage in electrical contracting in the State of Florida. At all times material hereto, Sundance Home Remodeling, Inc., did not possess a certificate of authority to practice as an electrical contractor qualified business. At all times material hereto, Respondent was the sole owner/operator of Sundance Home Remodeling, Inc. Respondent has an occupational carpentry license from Hillsborough County, Florida, and uses the general contractors’ licenses of others. In April 2003, Respondent contracted with Phyllis Price to do the following work at Ms. Price's residence in Riverview, Florida: enclose her back porch, add on a screened room, change the French doors in some of the bedrooms, and install electric ceiling fans, an electric outlet, and an exterior light. On or about April 17, 2003, Respondent contracted with Ms. Price to install and hook up four electric ceiling fans and install one exterior light for $130.00. On or about April 26, 2003, Respondent submitted a proposal to Ms. Price for the installation of one electric outlet at her residence for $25.00. Respondent completed the work that he contracted to do for Ms. Price, including the electrical work. Ms. Price paid Respondent at least $5,240.00 for the work that he performed. Of that amount, Ms. Price paid Respondent a total of $180.00 for the electrical work he performed at her residence. The electrical work contracted and performed by Respondent required a permit. No evidence was presented that, prior to this time, Respondent has been subject to disciplinary action for the unlicensed practice of electrical contracting. The total investigative costs to the Department of Business and Professional Regulation, excluding costs associated with any attorney’s time, was $313.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered that (1) finds Respondent not guilty of the charges alleged in Count One of the Administrative Complaint; (2) finds Respondent guilty of the charges in Count Two and Count Three of the Administrative Complaint; (3) imposes on Respondent an administrative fine of $1,000.00 for each violation, for a total administrative fine of $2,000; and (4) assesses Respondent costs of $313.00, for the investigation and prosecution of this case, excluding costs associated with an attorney's time. DONE AND ENTERED this 27th day of July, 2006, in Tallahassee, Leon County, Florida. S 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 27th day of July, 2006.
The Issue What if any, disciplinary action may be taken against Respondent based on alleged violations of Florida Statutes Section 489.531(1) (practicing electrical contracting or advertising one's self or business organization as available to engage in electrical or alarm system contracting without being certified or registered), and Section 455.227(1)(q) (engaging in the practice of unlicensed electrical contracting after previously being issued an Order to Cease and Desist from the unlicensed practice of electrical contracting.)
Findings Of Fact At all times material hereto, Respondent was not licensed nor had he ever been licensed to engage in electrical contracting in the State of Florida. Mr. George Hammond lives in Inverness, Florida in a single family dwelling with a detached garage. The house is serviced with a water well and electrical pump. On July 25, 2006, Mr. Hammond notified a long-time friend, Dennis Himmel that he had problems with his well and could not get water into his home. Mr. Himmel temporarily ran a wire between the well and garage so Mr. Hammond could get water, and suggested Mr. Hammond hire an electrician to do the permanent work. A few days later, Mr. Hammond told his friend, Craig Zeedick, that his well had been hit by lightening and someone was fixing it. Mr. Zeedick went to Mr. Hammond's house and observed Respondent kneeling down and making an electrical connection with the junction box. Respondent had stripped off the wire connections and made the wire nut connection. A boy was with Respondent, and the boy was burying an electrical cable to the well. The cable in the ground had no tubing or protection around it. At Mr. Hammond's request, Mr. Zeedick counted out approximately $947.00 in cash to Respondent for the electrical work. Sometime in August 2006, Mr. Himmel observed the work done at Mr. Hammond's home. He phoned Respondent to complain because the wire from the garage to the well was buried only four inches underground with no conduit (protective covering) over the wire into the garage. Respondent returned and covered the wire with conduit but then the pump did not work. Later, Respondent corrected the wire box connection, blaming the problems on Mr. Himmel. At some point in these machinations, Respondent succeeded in flooding Mr. Hammond's garage with water. Amy Becker, a license inspector with the Citrus County Building Division performed an investigation of the electrical contracting work done by Respondent at Mr. Hammond's residence, and took photographs. At that time, Mr. Hammond pointed out electrical wiring running from the well to the garage, and Ms. Becker observed there was a conduit and some plastic tubing. Ms. Becker then checked Respondent's licensing status, and found him to be unlicensed as an electrical contractor by either the State or Citrus County. She notified Petitioner, as the State licensing agency. On December 13, 2006, Ms. Becker cited Respondent for unlicensed contracting in wiring the water well pump at Mr. Hammond's residence. Respondent appeared before the County Board on December 13, 2006, and signed the citation signifying he wanted an administrative hearing. On January 24, 2007, Respondent, represented by counsel, was present for testimony before the Board, and the Board upheld the citation against Respondent. Respondent paid the citation on May 29, 2007. Respondent admitted to Petitioner's Investigator, Sharon Philman, during a telephone interview, that he had run wire from Mr. Hammond's garage to the well pump, for which work he charged approximately $940.00. On or about February 13, 2007, Petitioner issued a Cease and Desist Order against Respondent. The instant complaint/case followed. Petitioner put on no evidence concerning a prior 2005 case against Respondent.1/
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order: Finding Respondent guilty of having violated Section 489.531(1)(a), Florida Statutes, on one occasion, and assessing Respondent an administrative fine in the amount of $2,500.00 therefor, as permitted by Section 455.228(2), Florida Statutes. Finding Respondent not guilty of having violated Section 455.227(1)(q) as pled in Count II of the Administrative Complaint herein. DONE AND ENTERED this 19th day of September, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 19th day of September, 2007.
The Issue The issues presented for decision herein are whether or not Respondent failed to properly supervise a pool construction project, willfully violated local laws, is guilty of gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting and failed to discharge his supervisory duties as a qualifying agent in violation of sections 489.129(1)(d), (m), (j), and sections 489.119 and 489.105 (4), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. At all times material hereto, Respondent was a registered pool contractor in Florida, holding license no. RP0015329 and served as the qualifying agent for Paradise Pools, Inc. (Request for Admission, responses 1- 4). Petitioner is the regulatory agency in Florida charged with the authority to regulate contractors and to determine compliance with applicable state and local building code requirements. On May 31, 1986, Respondent entered into a contract with Alex and Theresa Nitu for the construction of a swimming pool at the Nitu's residence at 9550 Lisa Road in Dade County, Florida. The following day, the Nitus were approached by John Davis, a partner of Paradise Pools, Inc. Davis identified himself as the owner of Paradise Pools and told the Nitus that Respondent was the company salesman. Davis is not a licensed contractor. During construction, Davis supervised the work for the Nitus' pool. Mrs. Nitu was ill and remained at home on the day the workers laid reinforcing steel for the pool shell. Mr. Nitu, an electrical contractor, took off work and was at home during the two days when the gunite work was done for their pool. Respondent was not present on the job site on those days. The day after the concrete deck was poured, the Nitus noticed that it contained several low spots which collected water and that rocks were protruding through the deck's surface. Additionally, a portion of the deck sloped toward the pool rather than away from it. The following day, the Nitus returned home from work to discover that the "whitecoat" for the deck surface was completed and their water hose, weighted down by a rock and a rag, was filling the pool. The pool was filled with water before the Nitus had completed a fence to secure the pool. At Mr. Nitu's request, James Tucker, a Dade County Building Inspector, inspected the pool on August 6, 1986. Tucker issued a notice of violation to Respondent for allowing water to be put in the pool without proper safety barriers in contravention of section 33-12, Dade County Code; for allowing the deck to slope toward the pool in contravention of section 5003.1 of the South Florida Building Code and for using concrete of less than 2500 psi strength in contravention of section 5003.1(a), South Florida Building Code. In an attempt to correct the low spots and improper slope of the patio, Davis poured an additional layer of cement over the pool deck and scored the surface to create the appearance of keystone. Thereafter, the Nitus discovered hollow areas under certain parts of the keystone. Eventually, the keystone began to separate from the original deck exposing large areas of the deck. Ben Sirkus was tendered and accepted as an expert in pool construction. Sirkus inspected the Nitu's pool on September 24, 1987, at Petitioner's request. Sirkus observed low spots in the pool deck which held water and contributed to the growth of algae. He also observed that large areas of the imitation keystone had separated from the original deck; that portions of the deck still drained towards rather than away from, the pool; that coping mortar had been left on the sides of the coping and the pool shell; that areas of the whitecoat were unusually rough and that the pool pump was off level, which in time could cause scoring of the bearings in the pump. Sirkus opined that the deficiencies observed could not have gone unnoticed by a pool contractor of average skill and ability; that deficiencies indicate poor supervision or gross negligence or that Respondent exhibited incompetence in contracting for the Nitu's pool. John Davis, Respondent's partner and the person who was usually on the site during all facets of the construction, credibly testified that when the angles were laid out for the sloping of the decks surrounding the Nitu's pool, Alex Nitu requested that his employees angle the deck toward the pool such that it would mesh with his patio. This required that Respondent's employees reslope the angles in accord with Mr. Nitu's wishes and contrary to the manner in which they originally sloped the deck. Mr. Davis also attempted to correct the problems that had surfaced surrounding the deck in accordance with the concerns expressed by the Nitus. However, the Nitus vehemently refused access to Respondent's employees and the matter therefore, remained unresolved. Respondent Reise was at the construction site on numerous occasions during the major facets of the construction. In addition to being the principal salesman for Paradise Pools, Respondent Reise has extensive experience in the construction of pools and frequently consulted with his partner, John Davis, about the ongoing construction of the Nitu's pool. Respondent Reise also attempted to gain access to the pool to attempt to correct the problems and other concerns expressed by the Nitus, to no avail. In this regard, a meeting was held at the Nitu's residence on January 30, 1987, by Jim Tucker and Robert Denery, employees of the Dade County Building and Zoning Department, a Mr. Wolf, Petitioner's investigator, Respondent and his partner, John Davis. After a lengthy discussion, it was agreed that all problems were to be resolved which included (1), repair and patch the keystone on the east end of the pool and (2), rework the slope on the northside of the pool to pitch away from the pool and (3), submit test results from an engineering test lab as to the structural strength of the patio slab and final approval by the electrical and plumbing departments of Dade County. Respondent agreed to correct the above-referenced items and agreed to do so as quickly as feasible. The Nitus refused to allow Respondent's employees back on the site to correct the problems. (Respondent's Exhibit 1). John Davis and Respondent's other employees denied that they started filling the Nitu's pool prior to the time that the Nitus had completed a fence to secure it. Their denial in this regard is incredible and is not worthy of belief. The Nitus, in this regard, credibly testified that they were at all times concerned about the safety of the pool and would never have started filling it prior to the time that it was secured. Respondent's employees, on the other hand, were in fact interested in completing the job and it is therefore believed that they started the water running into the pool and weighted the hose down with a rock and a rag as the Nitus found it when they returned home from work on the day that the "whitecoat" was completed. In all other respects, based on the Nitus' failure to permit Respondent's employees to return to the site to complete the deficiencies and other concerns noted, the undersigned finds that Respondent should have been afforded an opportunity to correct such deficiencies and cannot be held liable 1/ for the allegations that he improperly sloped the pool deck, used improper concrete or was otherwise negligent, incompetent, engaged in misconduct and other allegations of improper supervision, as alleged. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent be assessed an administrative fine in the amount of $250.00. Respondent be issued a written reprimand for allowing his employees to fill an unsecured pool in violation of the local building code. DONE and ORDERED this 16th day of September, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1988.
